alleged, especially when the new matter charges the moving party with bad faith. Schermerhorn v. Van Voast, 1 Code Rep. N. S., 400.

Where a party in his notice of motion served on the adverse party, asks for a specific relief, or for such other or further order as may be just; the court may afford any relief compatible with the facts of the case presented. The People v. Turner, 1 California Rep., 152.

See supreme court rules 32, 37, 39, and common pleas rules in appendix.

By the laws of 1848, c. 35, motions in actions arising in Orleans county may be heard in Erie county.

"Where an issue of fact is tried at the circuit, the supreme court in which the action is pending, and not the circuit court is the court' intended by sections 308 and 401." Mann v. Tyler, 1 Code Rep. N. S., 383; 6 Pr. R., 236.

The particular grounds of a motion should appear plainly either by the notice of motion or the affidavits. Ellis v. Jones, 6 Pr. R., 296.

Where the irregularity complained of appears on the face of the motion papers, it is no objection that the alleged irregularity is not stated in the notice of motion. Blake v. Locy, 1 Code Rep. N. S., 406; contra, Coit v. Laimbeer, 2 Code Rep. 79; but by rule 25 of the recent supreme court rules, where the motion is for irregularity, the notice of motion or order to show cause, must specify the irregularity complained of.

In the court of appeals on a motion upon notice, an order will not be allowed to be taken by default, which interferes with the power of the court over the calendar. Crain v. Rowley, 4 Pr. R., 79.

A special motion cannot be renewed without leave of the court for that purpose obtained. Mitchell v. Allen, 12 Wend., 290; Dollfus v. Frosch, 5 Hill, 493; Allen v. Gibbs, 12 Wend., 202; Willett v. Fayerweather, 1 Barb. S. C. R., 73. Supreme court rule 83.

As to costs on a motion, see section 312 and note; and as to motions for extra allowance, see section 308 and note; and generally, as to motions, see supreme court rules 27, 28, 29, 32, 33, 39, and 40.

§ 402. [363.] (Amended 1849.) When notice is necessary, it must be eight days before hearing.-When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing; but the court or judge may, by an order to show cause, prescribe a shorter time.

Rule 32 of supreme court rules, in appendix, requires non-enumerated motions except in the first district, to be noticed for the first day of the term or sitting, unless sufficient cause shall be shown for the omission; and then a motion may be noticed for a day in term special other than the first, but sufficient excuse must appear upon the moving papers. Whipple v. Williams, 4 Pr. R., 28.

By a rule of the court of common pleas for the city and county of New York, (see appendix, and 2 Code Rep., 138), it is

Ordered, That orders to show cause on non-enumerated motions will not hereafter be granted, except upon affidavit showing the necessity of making the time of notice shorter than is required in the code; and where such order is returnable on any other day than the first day of the special term, the reason there for must be stated in the affidavits on which the motion is founded.

The first part of this rule does not apply to motions made on the regular notice of 8 days. Lakey v. Cogswell, 3 Code Rep., 116. The last part of rule 32 of the rules of the supreme court was held to be inconsistent with section 401 of the code. Ib.

"Can any judge at chambers make an order prescribing a shorter notice than eight days of a motion not to be heard before him? The section declares that the court or judge may, by an order to show cause, prescribe a shorter time' than eight days for notice of motion. It has been supposed, that under this provision any judge might, in his discretion, make an order which should, in effect, dispense with eight days' notice of a motion. I have myself practiced upon this construction of the statute, and I understand others have done the same. But I am satisfied, upon more careful attention to the terms of the section, that it will not bear this construction.

'The court or judge,' not 'the court or a judge,' may make the order. The court may hear a motion, and, in certain cases, a judge, out of court, may hear a motion. The court may, by its order, prescribe a shorter time, for giving notice of a motion to be made before the court, than that prescribed by law. A judge, likewise, when a motion is to be made before himself, may prescribe a shorter time. But I do not think it was the intention of the legislature that any judge at chambers should have the power of prescribing a shorter time than eight days for serving notice of a motion to be made in court, or before another judge. That this is so, will be manifest, I think, by comparing the language of the section with that of other sections conferring power upon a judge at chambers. Thus, the 158th section declares that the court or a judge thereof,' &c., may order a further account, &c. By the 218th section, the order of injunction may be made by the court, or by a judge thereof. Under the 225th section, a defendant may apply to a judge of the court' to vacate or modify an injunction. Other instances might be cited, but these are sufficient for my purpose. In all these cases, the authority given is conferred upon any judge. The indefinite article is prefixed to the term judge. But in the section under consideration, the definite article is used. It is the court or judge; that is, the court or the judge may make the order, and not the court or a judge, Who, then, may make the order contemplated by this section? That the court may make make it, is not questioned. But what judge may make it, out of court? Not any judge, but the judge. It is the judge before whom the application to which the order relates, is to be made. If the application is not to be made before a judge out of court, then no judge, out of court, can make the order to show cause. This, I have no doubt, is the true meaning of this provision of the code." Per Harris, J., in Merritt v. Slocum, 6 Pr. R., 350.

See sections 412, 413.

§ 403. [364.] In actions in supreme court, county judge may act at chambers. His orders, how reviewed.-In an action in the supreme court, a county judge, in addition to the powers conferred upon him by this act, may exercise, within his county, the powers of a judge of the supreme court at chambers, according to the existing practice, except as otherwise provided in this act. And in all cases where an order is made by a county judge, it may be reviewed in the same manner as if it had been made by a judge of the supreme court.

This section is identical with section 364 of the code of 1848, and per Harris, J.Parker, J., it is said, concurring,--section 364 (now 403) does not, as has been supposed, enlarge the powers of the county judge. Merritt v. Slocum, 1 Code Rep., 68.

A county judge has power independent of the code to grant an order extending the time to answer. There is nothing in any part of the code which takes away any of the powers given to county judges by the 29th section of the judiciary act of 1847, except that part of section 401 which enacts that "motions must be made within the district," &c. And this clause must be understood as applying exclusively to motions made upon notice. Peebles v. Rogers, 5 Pr. R., 208; 3 Code Rep, 215. Although a county judge must perform his official duties within his county, yet his acts when doue may have effect in any and all parts of the State. Ib.

The right of county judges to make orders in actions pending in the supreme court is fully recognized by the 80th, 90th, and 91st rules (now 84th, 85th, and 86th) of the rules of the supreme court. Ib.

The case of Peebles v. Rogers, was not concurred in by Harris, J., in Chubbuch v. Morrison, 6 Pr. R., 367; and it was there held that a county judge has no authority to make an order, staying proceedings in an action pending and triable in another county.

Where the place of trial mentioned in the complaint was the city and county of New York, and a county judge of the county of Kings had granted an injunction order, on motion to vacate such order the court said: "Section 218 says the order may

be made by "a" county judge, using the indefinite article, and section 403 defines what county judge is intended; and from that it appears it must be a county judge of the county in which the action is triable-that being so, the injunction order in this case is a nullity. Eddy v. Howlett, 2 Code Rep., 76.

Where a county judge makes an order in an action pending in the supreme court he acts as a justice of that court at chambers, and his orders are to be reviewed in the same manner as an order made at chambers. Conklin v. Dutcher, 1 Code Rep., N. S., 49.

Where an order was granted by a county judge, giving a respondent ten days further time to serve an affidavit on an appeal from a justice's court, held, that he had power to make such order. Truax v. Clute, 7 Leg. Obs., 163. See rules of New York common pleas in appendix.

§ 404. [365.] (Amended 1849.) In absence, &c., of judge at chambers, motion may be transferred by him to another judge. When notice of a motion is given, or an order to show cause is returnable before a judge out of court, and at the time fixed for the motion he is absent or unable to hear it, the same may be transferred, by his order, to some other judge, before whom the motion might originally have been made.

§ 405. [366.] (Amended 1849.) Enlarging time for proceedings in an action.--The time within which any proceeding in an action must be had, after its commencement, except the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds therefor, by a judge of the court, or if the action be in the supreme court, by a county judge. The affidavit or a copy thereof, must be served with a copy of the order, or the order may be disregarded.

This section is identical with section 366, in the code of 1848.

In an action commenced prior to 1st July, 1848, decided under the code of 1848, sections 362-366, it was said, that under the former practice, an order to enlarge the time to make a case or bill of exceptions, was invariably granted ex parte, and without an affidavit, the judge who tried the cause, acting from his own knowledge of the facts and questions of law arising in the case: section 366 (Code of 1848), allowing an order to be disregarded unless the affidavit on which it was granted, or a copy thereof, be served with a copy of the order, is inapplicable to an order to enlarge the time to make a case or bill of exceptions, when the order is granted by the judge who tried the cause. Thompson v. Blanchard, 1 Code Rep., 105. But if such an order be made by a judge other than the judge who tried the cause, the requirements of sections 405 and 401, subd. 3, must be complied with, and a copy of the affidavit must be served with the order. Ib. And Savage v. Relyea, 1 Code Rep., 42; 3 Pr. R., 276.

A judge at chambers cannot extend the time to make a case, after the ten days have expired. The party must apply to the court, on notice. Doty v. Brown, 3 Pr. R., 375; 2 Code Rep., 3.

The superior court of the city of New York have decided that it had no power to extend, directly or indirectly, the time within which an appeal could be taken. Renouil v. Harris, 1 Code Rep., 125, and Powell v. McCormick, 5 Pr. R., 337; Enos v. Thomas, ib., 361; 1 Code Rep. N. S., 67. But, at least one branch of the supreme court have held, that the restriction contained in this section, applies only to a chamber order made by a judge of the court, and that the court may enlarge the time to appeal, although a judge at chambers cannot. Traver v. Silvernail, 2 Code Rep., 96. Crittenden v. Adams, 1 Code Rep. N. S., 21.

An order for time to make a case and bill of exception, is not a stay of proceedings; therefore a judge other than the judge who tried the cause, may make an order ex parte, giving a party thirty days to make a case and bill of exceptions. Huff v. Bennett, 2 Code Rep., 139; 2 Sand. S. C. R., 703. And see Thompson v. Blanchard, 1 Code Rep., 105.

Where an order by a judge other than the judge who tried the cause, gave a party thirty days to make a case, &c., with a stay of proceedings in the mean time, held, that so much of the order as stayed the proceedings, might be disregarded, as improvidently inserted, and the order sustained so far as it extended the time to make a case, &c. Huff v. Bennett, supra.

An order granted ex parte, under this section, need not be entered with the clerk. Savage v. Relyea, 3 Pr. R., 276; 1 Code Rep., 42.

It has been suggested that this section (405) should be read in connection with section 173 of the code of 1849 (now, in substance, section 174), and as limiting the powers conferred by that section. Crittenden v. Adams, 3 Code Rep., 145, and note to section 173 of the code.

It is irregular to serve a copy of an affidavit on which a motion is to be founded, previous to its being sworn. Wilson v. Tiffany, 3 Wend., 310.

But it seems that omitting to include a copy of the jurat in the copy of affidavit served, does not render the proceedings irregular. Graham v. McCoun, 1 Code Rep. N. S., 43.

CHAPTER IX.

Entitling Affidavits.

SECTION 406. Affidavits defectively entitled, valid.

§ 406. [367.] Existing suits. Affidavits defectively entitled, valid.-It shall not be necessary to entitle an affidavit in the action; but an affidavit made without a title, or with a defective title, shall be as valid and effectual for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made.

This section is identical with section 367, in the code of 1848.

"This provision relates, I suppose, to the naming of the parties, and not the name of the court in which the matter is pending, or the proceeding is to be had." Per Bronson, Ch. J., in Clickman v. Clickman, 1 Code Rep., 98. And where an affidavit was entitled supreme court, instead of court of appeals, the court of appeals held it to be defective. 1b.

An affidavit entitled in the "county court," for a motion for retaxation of costs, &c., in proceedings "for forcible entry and detainer," commenced before a county judge, and brought into the supreme court by certiorari, comes within s. 406, and is sufficient. People v. Townsend, 6 Pr. R., 178.

On a motion to vacate an order, where the affidavits intelligibly refer to the action, an objection that the affidavits are entitled in the wrong court will be disregarded Blake v. Locy, 1 Code Rep. N. S., 406.

The entitling an affidavit, made before the action is commenced, in a suit (which under the former practice was fatal), may now be disregarded, under s. 176 of the code, as not affecting the substantial rights of the adverse party. Pindar v. Black, 2 Code Rep., 53.

This section does not apply to a notice of motion. 1 Code Rep, 98.

Affidavits made in foreign states or countries, how to be authenticated. 2 R. S., 2d ed., 317, s. 33; 12 Wend., 223; 3 Hill, 416. See note to section 157, in page 174, ante.

CHAPTER X.

Computation of Time.

SECTION 407. Time, how computed.

8 407. [368.] Existing suits. Time, how computed.—The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday it shall be excluded.

In the computation of time, upon service of notice of trial, the day of service is excluded, and the first day of term is included. This section establishes a general rule in such a case, notwithstanding the language in section 256. Easton v. Chamberlin, 3 Pr. R., 412; Dayton v. McIntyre, 3 Code Rep., 164; 5 Pr. R., 117.

Where an order was granted, giving a respondent ten days further time to serve an affidavit on an appeal from a justice's court, and such order was dated and served 1st March, 1849, and the affidavit was not served until Monday, the 12th,-held, that the affidavit was served in due time. Truax v Clute, 7 Leg. Obs., 163.

A notice, served on Saturday, for Monday, is not a notice of two days. Whipple v. Williams, 4 Pr. R., 28.

Sunday should be excluded in computing time, where the notice is less than a week. Ib. But in King v. Dowdall, 2 Sand. S. C. R., 131, the court said, We know of no rule or principle by which Sunday is to be excluded from the computation, where it is an intermediate day, and we supposed the law on the subject was settled. The law is established here, that Sunday must be computed, when it is an intermediate day. And per Hand, J., Nor is Sunday to be excluded in the computation, except in those cases where an act is to be performed within a certain length of time, and the last day for performance falls on a Sunday, and not when that day merely intervenes the notice and the time when an act is to be done on a specified day. Easton v. Chamberlin, 3 Pr. R., 412.

Where an act is to be done after the expiration of thirty days, it cannot be performed until the 31st day. Judd v. Fulton, 4 Pr. R., 298.

An order granting additional time, does not commence to run until the time thereby extended would have expired, had no order been made. Schenck v. McKie, 3 Code Rep., 24; 4 Pr. R., 247. Thus, where the time to answer would have expired on the 8th of October, and on the 1st of October an order was made for twenty days additional time to answer, it was held, that the time to answer was thereby extended until the 28th of October. Ib.

As to computing time for publication of legal notices, see section 425 of this code.