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APPELLATE DIVISION RULES

FOURTH DEPARTMENT

(Amended to Oct. 1, 1910)

RULE 1. Appeals from orders, when heard.

2. Preferred causes.
3. New calendar; case passed on previous calendar.
4. Criminal cases.
5. Day calendar.
6. Day calendar, how made up; when cause passed.
7. Clerk to telegraph day calendar to county clerks.
8. Submission; reservations.
9. Points to be filed and served; supplemental briefs.
10. Papers, etc., to be included in points.
11. Indorsement of brief.
12. Exchange of cases.
13. Disposition of non-enumerated motions and appeals from orders.
14. Motions for reargument.
15. Remittitur.
16. Official examiners of title.

Rule 1. Appeals from orders, when heard 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 case is to be put on the non-enumerated calendar. No case shall be put on the enumerated or non-enumerated calendar until the papers required by General Rule 41 shall have been filed with the clerk.

Rule 2. Preferred causes A party who desires to have a case heard as a preferred case, must, in his note of issue state his claim for prefer

Calendar; criminal cases; day calendar

Rules 3-5

ence, as provided in section 793 of the Code; or if an order giving the case 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 cases at the head of the general calendar, indicating that they are preferred, and the class to which they belong.

Rule 3. New calendar; cases passed on previous calendar

When a new calendar is ordered by the court, the clerk shall place thereon all cases which remain undisposed of on the former calendar, and all other cases in which notes of issue have been filed in his office. If a case shall have been passed, it shall go upon the calendar as of the time when it was passed, and the fact that it was passed shall be stated upon the calendar.

Rule 4. Criminal cases

Appeals in criminal cases, 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 cases, 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 case is to be heard, and he shall put the same on the calendar for the day on which it shall be noticed, or upon which it shall be ordered by the court, or stipulated by the parties to be heard.

Rule 5. Day calendar The clerk shall prepare at three o'clock p. m. of each day, a day calendar for the next day, to consist of ten cases, or such other number as the court shall direct, including those undisposed of on the then day calendar. They shall be taken from the general calendar in their order thereon,

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subject to the provisions of Rule 6. Cases not disposed of on any day shall be placed at the head of the calendar for the next day until disposed of. Rule 6. Day calendar, how made up; when cause passed

It shall not be necessary to notice cases for the day calendar. Any case on the general calendar may, by stipulation of the parties, filed with the clerk at any time before the case is placed upon the day calendar, be reserved for a day certain, except that no stipulation shall be made or filed reserving any of the first fifty cases on the general calendar beyond the first week. Cases so reserved for a day certain shall not be placed upon the day calendar for any day prior to that to which they have been so reserved. No case shall be put upon the day calendar unless the papers and points have been delivered to and filed with the clerk. Cases which cannot be placed upon the day calendar in their regular order or at the time to which they have been reserved by reason of the non-filing of the papers and points, will be regarded as passed for the term.

Rule 7. Clerk to telegraph day calendar to county clerks

The clerk shall, on each day during the term, immediately on making up the day calendar, telegraph the numbers of the cases upon it to the county clerks, at Buffalo, Syracuse, Utica, Oswego, Lockport, Auburn and Watertown, and the county clerks receiving said telegrams are directed to post or bulletin the same in such manner as shall be most convenient for attorneys and others desiring to see the same, and also to procure the publication of such telegrams in the newspapers of their respective cities.

Rule 8. Submission; reservations Cases will not be received upon submission until reached in the regular call of the calendar. No reservaPoints to be filed and served; supplemental briefs

- Rules 9

tion will be made of any of the first eight cases upon the general calendar, unless on account of sickness, or an engagement of counsel elsewhere in the actual trial or argument of another case in a court of record, commenced before the term of this court, or other inevitable necessity to be shown by affidavit. Other cases may be reserved upon reasonable cause shown, or by stipulation of parties, filed with the clerk, but no case shall be so reserved by stipulation after the same has been placed upon the day calendar.

Cases reserved for a day certain by stipulation, when in order to be called, have priority among each other according to their number on the calendar, and shall follow next in order the undisposed of cases of the calendar for the day previous. Default may be taken in them, and they will, if passed, be put upon future calendars as if passed in the regular call.

Every cause shall be deemed to be submitted to such justices as may be absent from the court at the time of the argument, unless objection to such submission by counsel arguing the cause be then made.

Rule 9. Points to be filed and served; supplemental briefs

Within fifteen days after the service of the printed papers required to be served by General Rule 41 in enumerated motions, the party whose duty it is to furnish those papers, shall file with the clerk sixteen printed copies of the papers and sixteen printed copies of his brief and the points upon which he intends to rely upon the argument, with a reference to all the authorities, which he intends to cite to the court; and shall, at the same time, serve on the attorney or counsel for the other party three copies thereof. Within seven days thereafter the other party shall file with the clerk, sixteen printed copies of his brief and points, with a reference to all his

Papers, etc., to be included in points

Rule 10

authorities, and serve on the attorney or counsel for the moving party, three printed copies thereof. If either party shall fail to serve and file his brief and points, as herein required, he shall not be heard upon the argument, and judgment may be entered against him, as upon default, on application to the court on any motion day upon three days' notice.

If the moving party desires to serve an answering brief he shall file with the clerk sixteen printed copies thereof, and serve upon his opponent three printed copies, within five days after the receipt of his opponent's brief. He shall not include, in his answering brief, any matter which is not in the nature of an answer to the brief to which it purports to reply. No supplemental briefs will be allowed unless requested by the court. This rule shall not apply to appeals from non-enumerated motions. It shall apply to all cases which shall be put upon the day calendar upon and after the 1st day of March, 1896. Upon the argument of all cases before that time, the moving party shall furnish to the clerk sixteen copies of the case, and each party shall furnish to the clerk sixteen copies of his brief. The clerk shall distribute the cases and briefs as prescribed in General Rule 43, and he shall, in addition, deliver one copy of each to the librarian of the law library in Buffalo, Rochester and Syracuse, to be bound and indexed for reference.

Rule 10. Papers, etc., to be included in points The moving party, in addition to the statement required in General Rule 41, shall prefix to his points a brief statement, showing when and in what court or before what officer or tribunal the action or proceeding was instituted, the relief sought, the defense or grounds of opposition thereto, the result in the court or before the officer or tribunal in which the action or proceeding

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