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Enlarging time; revoking orders; calendars
Rules 18, 19
When judgment is reversed by default for not joining in error, the remittitur should not sent to the court below until ten days have elapsed. Lyme v. Ward (1848), 1 N. Y. 531.
The object of Rule 17 is to give the appellant time to make the application before the filing of the remittitur. Latson v. Wallace (Ct. of App., 1854), 9 How. Pr. 334.
Rule 18. Enlarging time; revoking orders The time prescribed by these rules for doing any act may be enlarged by the court or by any of the judges thereof; and any of the judges may make orders to stay proceedings, which, when served with papers and notice of motion, shall stay the proceedings, according to the terms of the order. Any order may be revoked or modified by the judge who made it; or, in case of his absence or inability to act, by any of the other judges.
Authorizing orders by a single judge to stay proceedings has reference to general stays in causes pending in the Court of Appeals. Cushman v. Hadfield (1873), 52 N. Y. 653. In this case an order of one of the judges, staying the filing of remittitur, was held valid and operative.
Rule 19. Calendars
When a new calendar is ordered by the court, the clerk shall place thereon all causes in which notices of argument, with proof or admission of service, have been filed in his office; and, also, if ordered by the court, all other causes in which the returns have been filed in his office; and the causes so put on the calendar by the direction of the court will be heard in their order as if regularly noticed.
The date of filing the return regulates the position of a case on the calendar. Ref. Dutch Ch. v. Brown, 24 How. Pr. 89.
Times and places of holding terms
(Judiciary Law) § 154. The terms of the Court of Appeals must be appointed to be held, at such times and places as the court thinks proper, and continued as long as the public interest requires.
The terms of the court are held at the capitol, and since the increase in the court by the designation of three Supreme Court judges, pursuant to the Constitution, as amended in 1899, the sessions, with the exception of short recesses, will be almost continuous from the first Monday in October to July 1st. The June session has in recent years been held at Saratoga. The court regularly convenes at two o'clock P. M., and cases are heard until about six o'clock, P. M.
Rule 20. Motions for reargument
Motions for reargument must be submitted on printed briefs, without oral argument, on notice to the adverse party, stating briefly the ground upon which a reargument is asked and the points supposed to have been overlooked or misapprehended by the court, with proper reference to the particular portion of the case and to the authorities relied upon. (Amended Dec. 15, 1906, in effect January 7, 1907.)
When motion will be entertained. A motion for a reargument must be founded on papers showing that some question decisive of the case and duly submitted by counsel has been overlooked by the court, or that the decision is in conflict with a statute, or with a controlling decision to which the attention of the court was not directed through the neglect or inadvertence of counsel. Fosdick v. Town of Hempstead (1891), 126 N. Y. 651, following Mount v. Mitchell (1865), 32 id. 702; Marine Nat. Bank v. City Nat. Bank (1874), 59 id. 67; Auburn City Nat. Bank v. Hunsiker (1878), 72 id. 252. But the strict rule as above stated does not apply in capital cases. The motion will, however, be denied unless an important objection has been overlooked. People v. Patrick (1905), 183 N. Y. 52. In O'Brien v. Mayor, etc., of N. Y. (1894), 142 id. 671, however, the court, although denying the motion for reargument, entertained it, saying: “Appreciating, however, as we do, the extraordinary importance of the case to the parties, and understanding the strength of the plaintiff's desire for one more hearing before this court, and also being sensibly alive to the far-reaching results of our decision in its application to other possible suits, we have felt inclined to overlook the failure of the plaintiffs to bring their case within any one of the acknowledged grounds which the court recognizes as sufficient to grant an application of this kind, and we have, therefore, again examined the whole case with the care and deliberation which its importance demands."
On motion for reargument, the motion papers should enable the court to determine whether the decision requires correction in
any respect; and where the decision was upon a dissenting opinion in the court below, the case on appeal containing the opinion at the General Term should be furnished. Anderson v. Continental Ins. Co. of N. Y. (1887), 106 N. Y. 661.
The jurisdiction of the court is confined to review of determinations actually made by the Supreme Court, which must be had on the same papers which were before the General Term. The court cannot, therefore, permit a reargument upon papers showing proceedings instituted to amend defects in the original proceedings since the determination sought to be reviewed. Matter of New York Cable Co. (1887), 104 N. Y. 1.
Reargument, when denied; death of plaintiff. - The Court of Appeals will not grant a reargument upon an affidavit showing that when the appeal was argued and decided, the plaintiff was dead. Blake v. Griswold (Ct. of App., 1886), 4 N. Y. St. Rep. 285.
No exception to point raised. - A reargument on the ground that a material point was omitted at the argument will not be granted, if there was no exception raising the point in the original record upon which the reargument must be had. Hunt v. Church (1878), 73 N. Y. 615.
Point not presented. — The ordinary rule is that an exception not raised on the argument will be deemed abandoned. The omission of the appellant to present a point appearing in the case is not generally ground for reargument; certainly not unless something material has been overlooked. Rogers v. Laytin (1880), 81 N. Y. 642.
Failure of court to notice point. Omission of the court to notice, in opinion, supposed distinctions relied on, is not sufficient ground for asking reargument. Terry v. Wait (1874), 56 N. Y. 91, reaffirming 47 How. Pr. 52; mem. S. C., 48 N. Y. 657; Damment v. Osborn (1894), 141 N. Y. 564; Carlton v. Lombard (1896), 149 id. 601; Colonial City Traction Co. v. Kingston City R. R. Co. (1897), 154 id. 493.
Discussion in consultation. Where judgment of affirmance is pronounced in open court, and no member publicly dissents, it is no ground for ordering a reargument, that it is alleged that in their consultation the judges were equally divided in opinion. Mason v. Jones (1850), 3 N. Y. 375.
Correcting error in reasoning. It is not the usual practice to permit rearguments in the Court of Appeals for the purpose of correcting some error in the reasoning of the court as expressed in the opinion, when it is admitted that the decision itself is correct. Lyman v. Malcom Brewing Co. (1899), 161 N. Y. 119.
Error in construction of contract. — A claim that the court erred in the construction of the contract in question is not a ground for reargument. O'Brien v. Mayor (1894), 142 N. Y. 671.
On amended order. Where counsel was informed on argument, that as the order of reversal did not show it was on the facts, it would be presumed to be on the law only, and proceeded with the argument, held, that he was not entitled to a reargument on an amended order. Cudahy v. Rhinehardt (1892), 133 N. Y. 675.
Hardship from judgment absolute. — The hardship resulting from a judgment absolute, in accordance with stipulation, is not ground for allowing a reargument. Williams v. Lindblom (1894), 143 N. Y. 675.
Where relief may be had by new trial. A motion for reargument in the Court of Appeals was denied, on the ground that the remittitur had gone down, and as a new trial had been ordered, the cause could come again to the Court of Appeals. Mechanics' & Traders' Bank v. Dakin (1873), 54 N. Y. 681.
Where a new trial has been ordered, and the new question raised by the motion for a reargument can be raised in the court below, the reargument will not be allowed. People v. Ballard (1892), 136 N. Y. 639.
Where second motion is made. - A motion in substance and effect a second motion for reargument, over a year after the remittitur had been sent down, will not be considered. Genet v. President, etc., D. & H. Canal Co. (1893), 137 N. Y. 626.
After remittitur has been filed. After the remittitur has been filed in the court below, and the usual order entered thereon, it must be returned by the direction of the lower court, before the Court of Appeals can grant a reargument. Wilmerdings v. Fowler (Ct. of App., 1873), 15 Abb. Pr. (N. S.) 86. See further on this point, under Rule 16.
Motion allowed where important point was not argued. The judgment below was reversed on a point not argued here, and not much, if at all, considered at any stage of the case, and there being a wide divergence of views among the members as to the point, a reargument allowed. McArthur v. Gordon (1891), 126 N. Y. 597.
RULES OF THE COURT OF APPEALS FOR THE AD
MISSION OF ATTORNEYS AND COUNSELORS-AT
LAW (Adopted by the Court of Appeals Dec. 2. 1895. To take effect Jan. 1,
1896. As amended Dec. 20, 1906, to take effect July 1, 1907, and
Apr. 24, 1908, to take effect June 1, 1908.) RULE 1. Admission and license. 2. Admission of citizen who has practiced three years in another
state or country, etc.
RULE 4. Citizenship; prior examination; term of study.
5. Regulations as to term of study; regents' examinations; attorney's
certificate. 6. Proof required by law examiners. 7. Filing certificate nunc pro tunc. 8. Law examiners; fee for examination, examination oral or written;
second examination, 9. When to take effect.
Rule 1. Admission and license
No person shall be admitted to practice as an attorney or counselor in any court of record in this state, without a regular admission to the bar and license to practice granted by an Appellate Division of the Supreme Court.
Court may make and change rules. — The court 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, and the admission of attorneys and counselors-at-law, to practice in all the courts of record of the state. Judiciary Law, 88 51, 53.
The rules established by the Court of Appeals, touching the admission of attorneys and counselors to practice in the courts of record of the state, shall not be changed or amended, except by a majority of the judges of that court. A copy of each amendment to such rules must, within five days after it is adopted, be filed in the office of the secretary of state; who must transmit a printed copy thereof to the clerk of each county, and to the presiding justice of the Appellate Division of the Supreme Court, in each judicial department, and also cause the same to be published in the next ensuing volume of the Session Laws. Judiciary Law, $ 53, subd. 4; Executive Law, $ 30.
The requirement of this section as to publication and filing is directory only. Matter of Maxwell, 38 N. Y. St. Rep. 479. Section 52 of the Judiciary Law, requiring a general rule or order of the Court of Appeals to be published in the state paper, does not apply to rules regulating the admission of attorneys. 16 Alb. Law J. 309.
Examination and admission of attorneys. A citizen of the state, of full age, applying to be admitted to practice as an attorney or counselor in the courts of record of the state, must be examined and licensed to practice as prescribed in this chapter. (Judiciary Law, 460.)
State board of law examiners continued. The state board of law examiners is continued. Said board shall consist of three members of the bar, of