Page images




(Amended to Oct. 1, 1910)


October 22, 1894. Ordered, That the following amended rules regulating the practice and proceedings in the Court of Appeals and the admission of attorneys and counselors-at-law be and the same hereby are adopted in pursuance of the provisions of the Code of Civil Procedure, all the judges concurring, such rules to take effect January 1, 1895.

Power to make rules; publication

(Judiciary Law) 8 51. The Court of Appeals may from time to time make, alter, and amend, rules, not inconsistent with the Constitution or statutes of the state, regulating the practice and proceedings in the court.

$ 52. A general rule or order of the Court of Appeals, does not take effect, until it has been published in the newspaper published at Albany, designated pursuant to section eighty-two of the executive law, once in each week for three successive weeks.

Section 18 of the Code of Civil Procedure from which this section was derived does not apply to the rules regulating the admission of attorneys. 16 Alb. L. J. 309.

“The powers of the courts are either statutory, or those which appertain to them by force of the common law, or they are partly statutory and partly derived from immemorial usage, which latter constitutes their inherent jurisdiction. They are organized for the protection of public and private rights and the enforcement of remedies. Presumptively, therefore, whatever judicial procedure is essential to enable courts to exercise their function is authorized.” McQuigan v. D., L. & W. R. R. Co. (1891), 129 N. Y. 50.


Force, object and amendment of rules

[ocr errors]

Force of rules. The rules of courts are made under special statutory authority, and when made, have the force and effect of statutes. Matter of Moore (1888), 108 N. Y. 280; People v. Nichols (1879), 18 Hun, 530.

A rule of court cannot alter the statute. Rice v. Ehele (1874), 55 N. Y. 518; Glenney v. Stedwell (1876), 64 id. 120; French v. Powers (1880), 80 id. 146; Gormerly v. McGlynn (1881), 84 id. 284; People ex rel. Mayor v. Nichols (1880), 79 id. 582; People v. Bruff (1871), 9 Abb. N. C. 153; Palmer v. Phænix Ins. Co. (1880), 22 Hun, 224.

All matters of practice are, in the first instance, in the discretion of the courts in which questions of practice arise, when there are no statutory provisions or provisions by general rules of court that govern the cases. Yet matters of practice come after a while to be governed absolutely by the custom of the courts; and what is found in any case to have been held by authoritative decisions to be the custom of the courts, becomes thus the way in which discretion must go. Fisher v. Gould (1880), 81 N. Y. 228.

A substantial remedy cannot be prevented by a neglect to observe the rules of practice. Goldberg v. Utley (1875), 60 N. Y. 427, 429.

A court is justified in reversing an order appealed from, on account of its departure from the rules and practice of the court. Rules of practice are established to protect the rights of parties, and constitute a part of the jurisprudence of the country. Livingston's Petition (1866), 34 N. Y. 555, 581.

[ocr errors]

Object of rules. — The true object of technical rules is to promote justice or prevent injustice. When they fail of those ends and come to eat like rust into the substance of justice, courts should neither encourage or enforce them. People v. Tweed (1875), 5 Hun, 353.

Deviation from rules. The Supreme Court may overlook or relieve a violation or non-compliance with the rules, and may permit a party to do, after the time prescribed by any rule, what he should have done before. Martine v. Lowenstein (1877), 64 N. Y. 456; Evans v. Backer (1886), 101 id. 289.

A court may deviate from the general rules, whenever in its judgment a proper case is presented. Clark v. Brooks (1864), 26 How. Pr. 285.

[merged small][ocr errors]

Amendments of rules. - Amendments to rules of the courts are analogous to the amendments of statutes and should receive the same construction. Where a statute is amended, the part which remains unchanged is to be considered as having been continued the law from the time of its original enactment, and the new or changed portion to have become law only at and subsequent to the passage of the amendment. The above rule of construction applies to amendment of the rules. Matter of Warde (1897), 154 N. Y. 342.

[ocr errors]




(As amended Dec. 15, 1906, in effect Jan. 7, 1907]

Rule 1. Appellant to file return; effect of omission.

2. Further return may be ordered.
3. Attorneys and guardians below to continue to act.
4. Appellant to make a case; its form.
5. Case and points to be printed; mode of printing.
6. Appellant to serve copies of case; effect of his default.
7. Copies of case and points; serving points.
8. Statement and discussion of facts; absent judges.
9. Criminal causes.
10. Submission and reservation of causes.
11. Motions and appeals from orders.
12. Call of calendar; exchange of causes.
13. Time of argument.
14. Preferred causes.
15. Defaults.
16. The remittitur.
17. Affirmance by default.
18. Enlarging time; revoking orders.
19. Calendars.
20. Motions for reargument.

Notice. The first Monday of each session only will be a motion day, on which oral arguments will be heard in original motions. Original motions may be submitted, without oral argument, on any Monday when the court is in session, provided they are submitted by both sides.

After the day calendar is made up at 6 o'clock P. M. stipulations are too late. The clerk has then no power to leave a number off.

The full number of cases and points (16) are required, without which appeals may not be heard.

The “Order Calendar” is composed of preferred causes, and the notice of argument must claim the preference as an appeal“entitled to be heard under Rule 11." Appeals from orders should be noticed for the first Monday of a session.

The county clerk's certificate, or waiver thereof under section 3301, Code of Civil Procedure, are necessary parts of the printed case on appeal.

When a new calendar is ordered, it is desirable to notice causes in which the returns are filed, at once.

Counsel residing in New York city and its vicinity who intend to argue causes on the general calendar, should send their residence addresses to the clerk, and should promptly notify him of changes in their office addresses.

[blocks in formation]

The daily sessions of the court are held from 2 o'clock P. M., to 6 o'clock P. M., except Fridays only, when it will sit from 10 A. M. to 2 P. M.

Every Exhibit presented to the court should be plainly marked with the address of Counsel presenting the same, as well as the title of the cause.

The clerk always submits for Counsel who are absent when their cases are called for argument, provided their papers have been filed as directed by Rule 7.

Requests for copies of opinions should be addressed to the State Reporter, Albany, N. Y.

The sixteen printed copies of the case required by Rule 7 to be filed with the Clerk must be bound in light-colored (not dark) paper, and should not be sent to the clerk for filing until the appeal has received a calendar number.

Each day's calendar and all court notices to the Bar are printed in the New York Law Journal, which is the legal publication through which the clerk endeavors to reach the legal profession.

Attention of attorneys is called to Rule 7, which will be strictly enforced.

Rule 1. Appellant to file return; effect of omission If the appellant shall not cause the proper return to be made and filed with the clerk of this court within the time prescribed by law (Code Civ. Pro., $ 1315), the respondent may, by notice in writing, require such return to be filed within ten days after the service of the notice, and if the return be not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal. On an affidavit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal.

The return

(Code Civ. Pro.) § 1315. Where an appeal is taken from a final judgment, as prescribed in title second or third of this chapter, the appellant must, within twenty days after it is perfected, cause a copy of the judgment-roll and of the case and notice of exceptions, if any, filed after the entry of judgment, and a certified copy of the judgment given thereon and of the notice of appeal, to be transmitted to the Appellate Court by the clerk upon whom the notice of appeal was served.

The return - Rule 1

Where an appeal from an order, or a part of an order, is taken as prescribed title second, third and fifth of this chapter, the appellant must, within the same time, cause a certified copy of the notice of appeal, of the order, and of the papers upon which the order was founded, to be transmitted to the Appellate Court by the same clerk. If the appellant fails so to do, the respondent may cause those papers to be so transmitted; and he is entitled to tax the expense thereof, as a disbursement, where he recovers costs. The clerk of the Appellate Court must file the papers so transmitted; and except where it is otherwise specially prescribed by law, the appeal must be heard upon them. (Am. by L. 1890, ch. 312.)

§ 1339. When an appeal to the Court of Appeals, from a judgment, rendered by the Appellate Division of the Supreme Court, upon a verdict, subject to the opinion of the court, has been perfected, a case, containing a concise statement of the facts, of the questions of law arising thereupon and of the determination of those questions by the Appellate Division, must be prepared and settled, by or under the direction of the court below, and annexed to the judgment-roll. An exception is not necessary, to enable the Court of Appeals to review the determination of a question of law, arising upon the verdict. A certified copy of the case must be transmitted to the Court of Appeals, instead of the case upon which the judgment of the court below was rendered. The court below, or a judge thereof, may extend the time, limited by law, within which the papers must be transmitted to the Court of Appeals, for the purpose of enabling the appellant to procure the case to be prepared or settled. (Am. by L. 1895, ch. 946.)

Certification of return. Section 1315 of the Code provides that a copy of the judgment-roll, and of the case and notice of exceptions, if any, filed after the entry of judgment, and a certified copy of the judgment given thereon, and of the notice of appeal, be transmitted to the Appellate Court by the clerk of the court on whom the notice of appeal is served. Prior to the amendment of 1890, section 1315 required a “certified” copy of he notice of appeal, of the judgment-roll, and of a case or notice of exceptions, if any, to be transmitted by the clerk, and the Court of Appeals held, in Dow v. Darragh (1883), 92 N. Y. 537, that attorneys could not waive the certification, pursuant to section 3301. But the amendment of 1890, which omitted the requirement of a “certified” copy of the judgmentroll and of the case and notice of exceptions, and only required a "certified” copy of the judgment and notice of appeal, it seems to us clearly expressed the legislative intent, that certification of the judgment-roll, case and exceptions, is not necessary, notwithstanding that section 1339 requires a case to be certified where the appeal is taken directly to the Court of Appeals. It is usual, however, for attorneys to stipulate, pursuant to section 3301, waiving the certification of any of the papers on the appeal, including the judgment-roll, case and exceptions; and we understand that the clerk of the court accepts them when so stipulated, without question.

« PreviousContinue »