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Calendars

clerk sixteen printed copies and serve on the attorney for the appellant three printed copies of his brief and points. If the appellant desires to present brief or points in reply, he shall file with the clerk sixteen printed copies thereof and serve three printed copies on the attorney for the respondent within three days after the receipt of the respondent's points.

When, according to this rule, an appellant is in default, the appeal may, without previous notice, be dismissed on motion, when the case is reached for argument; and when a respondent is in default, he will not be heard except by leave of the court.

This rule shall not apply to appeals from orders, or appeals from the Municipal Court of the city of New York.

Non-enumerated calendar

Sixteen (16) copies of the appeal papers and points must be delivered to the clerk before the commencement of the argument.

Attention is called to General Rule 41, as printed in this calendar. If this rule is not strictly complied with, such causes as are therein referred to cannot be placed upon the calendar.

See ante, p. 187 for Rule 41.

The rule requiring the appellant's brief to be filed in advance of the argument so the respondent may know the grounds on which the reversal is to be asked for and answer them is a very misleading one if the court is to search for and reverse on errors not presented to it by counsel for the appellant. Simpson v. Foundation Co. (1909), 132 App. Div. 375, 388, 116 N. Y. Supp. 878.

Attention is called to Section 1353, Code of Civil Procedure

SEC. 1353. (Amended 1895, amendment to take effect January 1, 1896.) An appeal from a final judgment, taken as prescribed in this title, must be heard upon a

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certified copy of the notice of appeal, of the judgment-roll, and of the case or notice of exceptions, if any, filed as prescribed by law, or the general rules of practice after the entry of the judgment, and either before or after the appeal is taken. An appeal from an interlocutory judgment, or from an order, taken as prescribed in this title, must be heard upon a certified copy of the notice of appeal and of the papers used before the court, judge or justice, upon the hearing of the demurrer, application for judgment, or motion, as the case requires. Unless the Appellate Division shall in a special case otherwise direct, before an appeal shall be placed upon the calendar the appellant shall file with the Clerk of the Appellate Division the case and exceptions or the other papers, upon which the appeal shall be heard, printed as required by the rules of practice; in case the appeal is from a judgment, the printed case and exceptions must be ordered filed by the justice or referee before whom the case was tried.

Rule 1. Appeals from orders

Appeals from orders, heard as non-enumerated motions, will be placed upon a separate calendar and called upon the first day of the term.

Rule 2. Calendars

A new calendar will be made up for the January term. Calendars for subsequent terms during the year will be made up by adding to the calendar of the previous term all new appeals to be placed in regular order, according to the date of appeal on compliance with the requirements herein before prescribed. An appeal passed during any term may be brought on for argument on any day during a subsequent term upon stipulation, or upon four days' notice of the opposing party, and on filing with the clerk

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such stipulation or proof of service of such notice, the clerk will cause the appeal to be placed on the day calendar of the day named in such notice or stipulation.

Rule 3. Appeals from orders, when heard

Appeals from orders will also be heard on the third Monday of each term, and notices of argument may be given for such day, and the calendar for such day will consist of causes not called on the first Monday, and other causes in which the appeal papers and affidavit of service thereof have been filed with the clerk, as required by section 1353 of the Code of Civil Procedure and the General Rules of Practice.

Rule 4. Day calendar of non-enumerated causes

Non-enumerated causes will be placed upon the day calendar for the first and third Mondays of the term, and the hearing of such causes will continue from day to day until completed. The calendar for other days will consist of as many causes as shall be placed thereon from the General Calendar in their numerical order. (As amended Oct. 22, 1908.)

Rule 5. Reservation of causes on day calendar by consent

Causes can be reserved by consent for a day subsequent to the time when they would be reached in their order only when a stipulation to that effect is filed with the clerk before the day calendar is made up (one o'clock p. m.).

Rule 6. Motions, when heard

Motions, other than appeals from orders, will be heard on the first and third Mondays of the term, and notes of issue therefor must be filed with the clerk at least two days before the day for which they are noticed.

Notes of issue; criminal causes Rules 7-9

Rule 7. Notes of issue in appeals from orders

No appeal from an order will be heard unless it is placed on the non-enumerated calendar. The attorney or party intending to move such an appeal for argument shall, at least eight days before the time of the making up of the calendar, file with the clerk a note of issue, specifying the date of the service of the notice of appeal and stating that the cause is to be put on the non-enumerated calendar. No cause shall be put on the enumerated or nonenumerated calendar until the papers required by General Rule 41 shall have been filed with the clerk.

Rule 8. Notes of issue in preferred causes

A party who desires to have a cause heard as a preferred cause must, in his note of issue, state his claim for preference, as provided in section 793 of the Code; or if an order giving the cause a preference has been made under that section, the note of issue must be accompanied with a copy of such order. The clerk, in making up the calendar, shall place such preferred causes at the head of the general calendar, indicating that they are preferred, and that class to which they belong.

Rule 9. Criminal causes may be put upon the calendar at any time

Appeals in criminal causes, brought after making up the calendar, or too late to be placed upon the calendar, may be put upon the calendar at any time, and brought on for hearing as preferred causes, upon a notice of ten days to the adverse party, as provided in section 535 of the Criminal Code. A note of issue must be filed with the clerk at least five days before the day on which the cause is to be heard, and he shall put the same upon the calendar for the day on which it shall be noticed, or upon

Briefs; rearguments; statute; costs - - Rules 10-13

which it shall be ordered by the court, or stipulated by the parties to be heard.

Rule 10. Indorsement on brief

In order to facilitate the work of the reporter the counsel who argues the cause orally shall indorse his name on upper right-hand corner of first page of brief.

Rule 11. Motions for reargument

Motions for reargument will be heard only on notice to the adverse party, stating briefly the ground upon which a reargument is asked, and such motions must be submitted upon printed briefs, stating concisely the points supposed to have been overlooked or misapprehended by the court, with proper reference to the particular portion of the case and the authorities relied on; and a copy of the opinion delivered by the court in deciding the cause; and counsel will not be heard orally.

Rule 12. Statute cited in brief

When a statute is cited, so much thereof as may be deemed necessary to the decision of the case should be printed at length on the brief.

Rule 13. Costs

The genereal rule will prevail of imposing costs on the decisions of motions.

Remittitur

The remittitur to be transmitted pursuant to section 1355 of the Code shall contain a copy of the judgment order of this court, and the record which has been filed with the clerk, and shall be sealed with the seal and signed by the clerk of this court.

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