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consent, signed by the attorneys or counsel who are to argue the case, that the appeal be set down for any future day of the term may be filed with the clerk, and such case shall be placed on the Day Calendar for such day at the end of the cases remaining thereon undisposed of in the order in which they have been set down, provided that no more than fifteen cases shall be placed on any Day Calendar, and provided that such case would have been reached on the General Calendar if not so set down.
If an appellant or moving party is in default in filing and serving the points hereinbefore required the opposing party may move upon four days' notice to dismiss the appeal or for final judgment or final order, as the case requires. If the respondent is in default in filing and serving the points hereinbefore required he will not be heard except by special leave of the court. (As amended Dec. 17, 1909.)
Rule 7. Submission on points
The parties to a case that has been reached upon the regular call of the calendar may, by consent, submit the appeal by delivering to the clerk of the court the requisite number of points printed, as required by the General Rules of Practice.
Rule 8. Motions for reargument
Motions for reargument must be noticed for the first, second or third motion days after the appeal has been decided. Such motions will only be heard on notice to the adverse party, stating briefly the grounds upon which a reargument is asked; and such motion must be submitted on printed briefs, stating concisely the points supposed to have been overlooked or misapprehended by the court, and with proper reference to the particular portion of the
Briefs; Allowance of appeals — Rules 9, 10
case and the authorities relied upon, and a printed copy of the opinion, and counsel will not be heard orally. (As amended Dec. 17, 1909.)
A motion for reargument may be made as soon as a decision is announced without the entry of the order or judgment of the Appellate Court. Matter of Grant (1909), 132 App. Div. 739, 116 N. Y. Supp. 767.
Rule 9. When supplemental brief may be submitted No brief or memorandum of authorities will be received by the court after the argument of a motion or an appeal, unless permission be given by the court for its submission after notice to opposing counsel of the application for such permission.
Counsel having cases on same day calendar in First and Second
In the event of counsel having cases upon the day calendars of the Appellate Divisions of the First and Second Departments on the same day such counsel shall attend the court in that department in which his case stands nearest the head of such day calendar; and his case upon the calendar of the other department will be held until the argument of the case is finished in the department in which he is first required to attend.
In the event of counsel having cases upon each of the day calendars of the said departments upon the same day, which stand equally distant from the heads of the respective day calendars, such counsel shall attend court in the First Department. (Adopted Nov. 23, 1903; in effect Dec. 1, 1903.)
Rule 10. Allowance of appeals from City and Municipal
Applications “to a justice of the Appellate Division of the First Judicial Department,” under section 1344 of
Allowance of appeals — Rule 10
the Code of Civil Procedure, for the allowance of an appeal to be taken to such Appellate Division from the determination of the justices designated to hear appeals from the City Court of the City of New York and the Municipal Court of the Boroughs of Manhattan and the Bronx, may be made upon any motion day within two months after such determination, unless the determination is made within two months of the last motion day prior to the first day of July, in which case they may be made on the first motion day prior to the first day of July, in which case they may be made on the first motion day in the October term; and must be upon notice of two days to the opposite party or parties, and a note of issue filed, and the same put upon the calendar of motions in the manner provided by Rule 2 of the Appellate Division rules relating to the hearing of motions. The papers upon which such application is made must contain a copy of the opinion of the justices below, if any, a copy of the printed record in the court below, if any, a concise statement of the grounds of alleged error, and proof of due service of the papers upon which the application is founded. Upon the calling of the motion calendar, such applications must be submitted without argument. Such applications will not be entertained unless an application for leave to appeal has first been made to the justices by whom such determination was made, in the manner provided by Rule 7 for the regulation of the hearing of appeals from the City Court of the City of New York and the Municipal Court of the Boroughs of Manhattan and the Bronx, and has been denied. (Added Oct. 11, 1904, and amended Dec. 17, 1909.)
Rule 41 of the General Rules of Practice provides in substance that the party whose duty it is to furnish the record shall cause a printed copy of the requisite papers to be filed in the office of the Clerk of the Appellate Divi
sion within twenty days after the appeal has been taken and further that "if the appellant fails to file and serve the papers as aforesaid the respondent may move on any motion day, upon three days' notice, to dismiss the appeal.” If the appellant is unable within that time to make, serve and file his record upon appeal, it is his duty to have the time extended either by consent or order; and if he neglects to obtain such extension he suffers a default.
The application for an extension must always be made in the court below or to a justice thereof; and where a motion to dismiss is made in this court, and it appears that the appellant has suffered a default in filing and serving the papers specified in Rule 41, nothing remains if the rule is to be enforced but for this court to dismiss the appeal. Excuses for delay may very properly be presented to the court below on an application to extend the time, but they cannot be considered when offered at the Appellate Division in opposition to a motion to dismiss — the default being shown or admitted. This has been frequently called to the attention of the bar, and if Rule 41 is to have any force and effect, it is certain from its reading that, upon such default being made to appear, it becomes the duty of this court to dismiss the appeal.
If at the time the motion to dismiss is heard it should appear that a motion is pending to open the default and have the time extended, this court may properly hold the motion to await the determination of that application in the court below; but further indulgence cannot be extended to those who neglect to comply with the rule.
We have deemed it proper to call attention again to this subject, to the end that those in a position to suffer as a result of their neglect to apply in the court below for an extension of time will have no reason to complain of the lack of adequate notice.
APPELLATE DIVISION RULES
(Amended to Oct. 1, 1910)
Sixteen (16) copies of the cases must be delivered to the clerk before the commencement of the argument.
At least ten days before a cause is placed on the day calendar the appellant shall file with the clerk sixteen printed copies and serve on the attorney for the respondent three printed copies of his brief and points. Within five days after such service the respondent shall file with the