Joel Tiffany.

The New York practice : a treatise upon practice and pleadings in actions and special proceedings in the courts of record of the State of New York (Volume 2) online

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notice requiring- that the return should be filed, and pro-
cure from the clerk of the court of api^eals a certificate
that no return has been filed. Upon presenting and filing
with the clerk these papers, the respondent has a right to
enter a rule with the clerk to the effect that the appeal is
dismissed for want of prosecution, with costs, and there-
upon such proceedings may be had as if no appeal had
been brought.^

Time to file return, Iww extended. If, for good cause
shown, the appellant is not able to procure the return to
be filed within the proper time, ujjon that fact being made
to ai)pear by atfidavit, the court of appeals, or either of
the judges of that court, may grant an order extending the
time for filing the return.-

The default in not filing the return in time will, be re-
lieved against on proper terms, in all cases where it appears
that the appeal is brought in good faith; but the appeal
will not be reinstated without the appellant establishes a
clear case of diligence on his part, and shows that the
unexcusable default of the clerk, or an unavoidable acci-
dent, prevented the filing of the return or the extension of
the time of filing it.^

Order for further return. If the return made by the
clerk is defective, either party may, on affidavit specifying
the defect, apply to one of the judges of the court of ap-
peals for an order that the clerk make a fuither return
without delay.

Case on apical. The return having been duly filed, the
next step in the cause is for the appellant, to prepare a
case which consists of a coi)y of the return of the clerk,
co[)ies of the opinions delivered or reasons given for the
judgment in the court below, both at special and general
term, and if the case is voluminous, an index to the plead-
ings, exhibits, deposition and other principal matters cm-
bodied in the case. If the opinions or reasons of the court
below caimot be obtained, an affidavit that the same
cannot be obtained, should be inserted in the case.'

Printinff and serving case. The case being prepared it
nuist be printed, and within forty days aft<3r the appeal

' Court of Appeals, Rule 2. 407; Spoore y. Tannain, 16 N. Y.

' Coiu-t of Appeals, Rule 18. U., G20.

* Waiernan v. Whilnty, 1 How. Pr. R., * Court oC Appeals, Rulo 5.


sliall liavc been perfected, the appellant must serve three
printed copies of the case on the respondent's attorney.
If the appellant fails to do this in proper time, the re-
spondent may serve a notice in writing upon the appellant's
attorney, requiring the service of such printed copies
within ten days after the service of such notice. If the
copies are not served within the time specified in such
notice, the appellant will be deemed to have waived his
appeal. The respondent should then prepare an affidavit
showing- when the. appeal was perfecteil, the service of the
notice mentioned after the lapse of the forty days, and
the appellant's default in not serving the case within the
time Gpesified in the notice. This affidavit should then
be filed with the clerk of the court of appeals, who will
thereupon enter an order to the effect that the appeal is
dismissed for want of prosecution, and the court below
may then proceed as if there had been no appeal.*

ildu'f from dismissal. If the proceedings by which the
order dismissing the appeal are in all respects regular, and
the remittitur has been made and filed in the court below,
the court of appeals has no further jurisdiction over the
case, and the only remedy the appellant has is to bring a
new appeal.^ IfAvill be irregular to bring the new appeal
Avithout first paying the costs of the former appeal, and
if such costs are not paid, the second appeal will be dis-

If the order dismissing the appeal was irregularly en-
tered or entered upon a false affidavit, the court of appeals
will entertain a morion to set aside the order dismissing the
appeal, and the remittitur, which, if granted, restores the
appeal f but the court to which the remittitur is sent cannot
inquire as to its propriety; it is the duty of that court to
proceed ujjon it if it is regular upon its face.

Although the proceedings of the respondent in dismiss-
ing of the ai)peal for the omission to file, return or serve
a case may be strictly regular, the court of appeals may,
before the remittitur is tiled, relieve the party on motion
from the default, but this will only be allowed where a
clear case of diligence is shown.''

When return or case is imperfect. Where the return filed
or the case served is imperfect, the remedy is by motion to

' Court of Appeals. Rule 7. - Newton v. Harris, S Barb., 306.

= Dressn'- v. Brooks,4. How. Pr. R., 207. " Spoore v. Tannain, 16 N. Y. R., 620.


tbe court upon notice. The right to dismiss the appeal by
common rule applies only to those cases where there is an
eutire failure to tile a return or serve copies of the case.^

Where no case is made or served on appeal, the resj)on-
dent may, instead of taking proceedings to dismiss the
appeal by common rule, wait until the cause is regularly
called on the calendar, and then take judgment of aftirm-
ance by default. He is not bound to move to dismiss the
a])peal. This is much the better practice to adopt in those
cases where the undertaking was given before the late
amendment of the Code, requiring surety to be given as
well against a dismissal as an affirmance.

Notice of argument. The notice of argument nuisfr spe-
cify the judicial district in which the appeal arose; it must
be for the first day of the term, and must be served, at
least eight days before the term, upon the attorney of the
adverse party and the clerk of the court. The notice
served on the clerk must be accompanied by due admis-
sion or proof of service of notice of argument upon the
adverse party, and unless such proof is furnished, the clerk
will not put the case on the calendar.^ If the cause is
duly noticed for the January term in any year, it will be
considered as noticed for all subsequent terms in the year.
Any party claiming a preference, must state in his notice
of argument to the op[)osite part}', and to the clerk, the
ground of such preference, so as to show to what class of
preferred cases the cause belongs.

Calendar. It is the duty of the clerk to make up a cal-
endar for the Jaimary term of each year, which stands as
the calendar for the entire year. Preferred causes are
placed on the calendar in the following order: 1. Oriminal
actions; 2. Cases of probate in which the appeal prevents
the issuing of letters testamentary or of general adminis-
tration; 3. Appeals in which the sole plaintiffs or defend-
ants are executors or administrators; 4. All other preferred
causes. Then follows the other causes, arranging tliem in
the order in which returns are filed, specifying the Judicial
district in which the causes originated respectively.

After the January term in each year, no causes except
such as are by law entitled to a preference will be per-

' Botver.s v. Tullmadge, 20 N. Y. R., 516. " Court of Appeals, Rules 8, 24, 27.

* By n lute rule it i? required that the notice of argument shall be served on the clerk
before the Qfteciith of December.


luitted to be placed on the calendar without the direction
of the court.

There is no advantage in noticing any other than a
preferred cause for any otlier than January terms. A
calendar of preferred causes is made up for each term,
and when that is disposed of at the second and each subse-
quent term in the year, the call of the calendar will com-
mence at the point where it terminated at the previous term.

Preparation for argument. Each party should prepare
a brief statement of tlie leading- facts of the case which
he deems established, with a reference to the folios where
the evidence of such facts may be found, together with the
points on which he intends to rely, with a reference to
the authority which he intends to cite. These points must
be printed in the same manner as the case.

Calendar practice. Any cause, except the first ten upon
the calendar, on consent of the parties who placed the same
thereon, may, at any time, during the first week of the term,
be struck therefrom, by the clerk, of course, and without
prejudice to its being placed on the calendar for the next
year. Ten causes only will be called on any day, but after
such call, cases ready on both sides will be heard in their
order. Causes upon the calendar may be exchanged one
for another, of course, on filing with the clerk in court
a note of the ])roposed change, with the numbers of the
causes, signed b}' the respective attorneys or counsel. Upon
all subsequent calendars, each of said causes will take the
place due to the date of the filing of the return in the other.
A cause cannot be reserved or set down for a i)articular
day except in extraordinar}' cases. When a cause is called,
it is the duty of the appellant to deliver to the clerk in
court fourteen copies of the printed case and his points, and
the respondent a like number of his printed points. The
clerk will dispose of them as follows: He will deliver a
co})y to each of the judges, one copy to the state reporter,
one copy shall be deposited in the state library, one copy
Khali be deposited in each branch of the library of the court
of ai)peals, one copy shall be deposited in the New York
law institute, and one copy of each shall be kept by the
clerk with the records of the court. If the cause is called
and the respondent does not appear, the appellant shall
furnish the court with the usual number of printed copies
of the case and points, and shall furnish to the clerk another
printed copy of the points, to be by him delivered to the


other party when called for. If the respondent appears
and the appellant does not appear, he shall hand to the
court the copies of the case served on him and fonrteen
printed copies of the points, and shall also hand to the clerk
a copy of his points for the opposite party. The party
appearing alone, may, at his option, snbmit the case on his
brief or argue it. At any time within twenty days after the
cause has been so submitted or argued, the opposite party
may furnish to each member of the court, and serve upon
the opposite party a printed ans-wer to such brief, which
may be replied to within fifteen days after such service.

If neither party appears when the case is called, it will
be passed, and it will be placed on all subsequent calen-
dars as if the return had been filed on the day when it
was so passed ; and if it is a preferred cause, it thereafter
looses its preference, except that any cause that is passed
will resume its original ijlace upon the calendar for the
ensuing year.

Suhnitting causes. Causes which have not been exchanged
may be submitted at any time on printed arguments.
Exchanged causes cannot be submitted until they are
reached od the calendar.

Argument. In the argument of causes only one counsel
on each side will be heard unless the court shall otherwise
direct. The appellant's counsel opens the argument, to
which the respoudeut's counsel replies when the appel-
lant's counsel closes, by replying to any new points taken
by respondent. Ko extended discussion is allowed upon
any mere question of fact, and no more than two hours
shall be occupied by each counsel except by the express
permission of the court.

Errors in case. If the case does not present questions
that can be properly examined in the court of appeals, that
court will dismiss the appeal whether a motion has been
made for that purpose or not ; but if it should apjiear that
the defect in the case is a clerical or accidental omission,
and that the party has acted in good faith, the court will
order the case to stand over and order the omission to be

lie-argument. If the unsuccessful party thinks it clear
that the appellate court has, through error or misapi)rehen-
Bion, erroneously decided his case, and that he will be able
to satisfy the court of this, he may prepare papers on
which to move for a re-argument, and on these motion

n.— 17



papers procure from tbe court or a judge thereof, an order
staying tbe sending down of the remittitur until he can
be heard on his motion. If the court have reason to
believe that there has been any misapprehension of the
case on the part of the court, that would be likely to vary
th(5 result, it may order a re-argument, in which case it
would again go upon the calendar as we have already

2Vte decision and remittitur. The decision haviug been
made by the court, and tiled by its clerk, it is his duty to
I)repare the remittitur, which shall contain a statement
of the judgment of the court of appeals, aud the return
made by the clerk of the court below, and shall be sealed
with the seal, and signed by the clerk of the court. The
successful party should see that this remittitur is properly
made and tiled- with the clerk where the judgment appealed
from is entered.

Entry of judgment. The remittitur having been pro-
perly filed, the successful party can proceed to tax his
costs before the clerk of the county where the judgment
appealed from was entered, and he may there enter in the
oltice of the same clerk a judgment to the effect directed
by the court of a])peals. The court of appeals may, in its
discretion, award <hunages for the delay by means of the
appeal, not exceeding ten per cent u[)on the amount of
the judgment,^ and when this allowance is made, it should
be included with the costs in the judgment entered in the
court below on the remittitur.

It has frequently been asserted by judges that upon filing
the remittitur in the court below, a motion, on notice,
should be made in that court for an order that the judg-
ment of the appellate court be made tbe judgment of the
court below ; but this is not thought to be necessary. It
woidd seem to be a matter of course, and there can be no
good reason why tbe judgment should not be entered ex
imrte and of course. Should a judgment be entered,
is not warranted or authorized by tbe remittitur, it will
be set aside on motion. A copy of tbe judgment entered,
attached to the remittitur on file will constitute the judg-
ment roll.

If the judgment involves anj' special provisions, it is
usual upon the decision of the case for the court to desig-

' Code, § 307.


nate one of its judges, before whom the details of the deter-
mination shall be settled. Either party may, ou notice,
bring- the case before such judge for settlement, and the form
of the decisiou as settled, shoidd be tiled with the clerk of
the court of appeals before the remittitur is made up.

Appeals from orders. Unlike the practice iu the supremo
court, the sauie practice obtains iu this court on appeals
from orders, as upon appeals from judgmeuts. Notice of
appeal is given iu the same manner, the same security
is required to uuike tlie appeal etFectual. The cause is
noticed, put on the calendar, and heard in the same man-
ner as an appeal from judgmeuts and the same costs are

Motions. In this court motions are prepared and brought
on the same as iu other courts. The affidavits and other
l)apers must be entitled iu the court of appeals. Motions
may be noticed for, and brought to hearing, on the tirst
day of the term, and on each succeeding Tuesday and
Friday at the opening of the court, and before the calen-
dar is taken up. When notice of a motion has been given,
if no one appear to oppose it, and it does not interfere
with the power of the court in controlling their caleiular,
it will be granted as of course.

If a motion be not made on the day for which it has
been noticed, the opposing party will be entitled, ou ap-
plying to the court at the close of the motions for that
day, to a rule denying the motion, with costs.

Action upon the umhrtaJdug. No action can be com-
menced upon any of the undertakings before mentioned,
until ten days after the service of notice ou the adverse
party, of the entry of the order or judgment afldrming the
judgment appealed from.^

Discontinuing appeal. The appellant may, at any time,
enter an order with the appellate court, discontinning
his appeal, if he desires to, upon paying or tendering to
the a<lverse i)arty his costs. If he cannot adjust the costs
he should call upon the other party to tax them, and if
that is declined, a motion should be made for leave to dis-
continue setting out on the motion i)apers, the otfer to
pay the costs, and the refusal or neglect of the otlun- party
to tax them, and the court will thereupon order the appeal
discontinued upon such terms as it deems just.

' Code, § 340.




An appeal may be taken to the supreme court from a
judgment rendered by a county court, or by the mayor's
courts or recorder's courts of cities, and also from any
order affecting a substantial rigbt made by a county court
or a county judge in any action or proceeding.^ An
appeal may also in the same manner be taken from a
judgment or final determination of tlie Brooklyn city
court, and from any intermediate order of that court
involving the merits and necessarily affecting the judg-
ment.^ The practice as prescribed by the Code does not
apply to appeals from judgments and decrees of surro-
gates ; such decrees will, therefore, be separately con-
sidered. In j)roceedings respecting the admeasurement
of dower, which may be taken either in the county or sur-
rogate court, the appeal must be taken as directed in this
chapter, if the proceeding is in the county court ; if it is
in the surrogate court, then the appeal must be taken as
we shall presently show.

Time within wJiick appeal mast he taken. If from a judg-
ment, the appeal must be taken within two years after the
judgment shall be perfected, by filing the judgment roll.^
There does not seem to be any express provision as to the
time within which an ajjpeal from an order should be
brought, but we are of the opinion that the section of the
Code limiting the time for appealing from judgments^ will
be construed to apply as well to orders, and that appeals
from orders under tliis chapter must be brought within
two years after the entry thereof.

Where the appeal is from an order or decision of the
county court, confirming or vacating any admeasurement
of dower, or the judgment, order or other determination
of that court upon any proceeding instituted therein in
relation to the persons or estates of habitual drunkards, it

* Code, g 344. ' Code, § 33L

» Laws of 1850, ch. 102, p. 148.


would be safer to take the appeal in the former case witliiu
thirty (lays, and ia the latter within three months after
the making of such order, judgment or other determina-
tion, inasmuch as by the Revised Statutes such appeals
are required to be taken within that time.^

Notice of apiyeal. The first step, in bringing the appeal,
is to make and serve the notice of appeal. The same
practice applies in making and serving the notice of appeal
as in the court of appeals.

Security. To render the appeal e^ectual for any purpose
whatever, the same security for fe*F^ hundred a^ Mfcr dol- ' i^*
lars must be given, as has been shown to be necessary in the
court of appeals, and the like security as is there required
must be given to effect a stay of proceedings upon the
judgment appealed from,^ and the same motion must be
made as has been shown to be necessary in that court,
where the appeal is from an order, and a stay is desired.

When t/ie appeal is from a judgment.

Return. Upon the appeal being perfected, it is the duty
of the clerk with whom the notice of appeal is filed, at
the expense of the appellant, forthwith to make and file
in his office a certified copy of the notice of appeal and
of the judgment roll.^ If the appellant does not, within
twenty days after the appeal is perfected, procure such
return to be made, the respondent may cause it to be done,
and in case the judgment is affirmed, he may cause the
expenses thereof to be taxed as a disbursement ;* but
the respondent is not bound to do this. If the api)ellant
for an unreasonable time, without sntficient excuse, omits
to i)rocure the filing of the return, the court would doubt-
less, on motion, dismiss the ai)peal.^

Notice of argument. The return having been filed, the
cause is in readiness to notice for argument. It may be
noticed for a general term, either in the district embracing
the county where the judgment appealed from Avas entered,
or in a county adjoining that county, except that where
the judgment was entered in the city and county of New
York, the appeal must be heard in the first judicial dis-
trict.® Either party may notice the cause for argument,
and the notice must be at least eight days.

• 3 R. S., 5th ed., 907 (Gil). ' Laws 18G2. p. GG2.

* Jones V. Decker, 14 Abb., 391, ' Hojan v. BrojAij, 2 Code Rep., 77.
» Code, § 328. • Code, § 346.



Note of issue. A note of issue, showing the title of the
canse, the names of the attorneys of the respective parties,
and the date of the service of the notice of appeal, shall,
at least eight days before the time of the commencement
of the conrt for which the cause is noticed, be tiled with the
clerk of the county where the general term is appointed to
be held.*

Case on appeal. It is the duty of the appellant to prepare
a case on appeal, which must show the time of the com-
mencement and of the service of the respective pleadings,
the names of the original jiarties in full, the change of
parties, if any has taken place pending the suit, to wliic'A
shall be added a copy of the return of the clerk and the
opinion of the court below, or an affidavit that no opinion
in writing was given, or, if given, that a copy could not
be prociu-ed.^ This case must be printed, and at least
eight days before the commencement of the term the
appellant must serve upon the respondent's attorney three
jn-inted copies of the case. If he fail to do this, the latter
shall be entitled to move on atiidavit and notice of motion
for the earliest practicable day in the term for hearing non-
enumerated motions, that the cause be stricken from the
calendar (whichever party may have noticed it for argu-
ment), and that judgment be rendered in his favor. Motion
days are the first day, Thursday of the first week, and Fri-
day of the second week of the term ; so that, as the notice
of inotion must be given for eight days, the motion will
have to be for the second or a later motion day in term,
and shonld the cause be reached on the calendar before the
day for which the motion is noticed, it is the practice of
the court, upon the suggestion that snch a motion is pend-
ing, to reserve the case until the motion can be heard. If
the printed case as served is materially defective, the appel-
late court will, on motion, order the defects to be corrected
by the appellant, and with costs of motion, if it shall
appear that the appellant's attorney, upon request, neg-
lected or refused to make proper corrections.

Points. Before the meeting of the court, each party
should prepare and cause to be printed a statement of the
leading facts which he deems established, with a reference
to the folios where the evidence of such facts may be
found, together with the points on which he intends to

* Supreme Court, rule 41. " Supreme Court, rule 43.


rely, 'with a reference to the authorities which he intends
to cite.

Argument. At the commencement of the argument, tlie
appellant must furnish each of the judges a printed copy
of the case and his points, and must also deliver to his
adversary a copy of his points. The respondent must fur-
nish the judges and appellant's counsel each a copy of his
points. Tbe appellant opens and closes the argument ; the
court will not liear an extended discussion on a mere ques-
tion of fact ; not more than one counsel will be heard on
each side, and then not more than one hour each, except
when the court shall otherwise order.

Decision. The appellate court is vested with no appellate
authority, excei)t to review and correct the decisions of the

Online LibraryJoel TiffanyThe New York practice : a treatise upon practice and pleadings in actions and special proceedings in the courts of record of the State of New York (Volume 2) → online text (page 15 of 50)