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APPENDIX.

RULES OF COURT.*

COURT OF APPEALS.

ADOPTED MAY 25, 1849.-AMENDED APRIL 7, 1852.

ORDERED, That the following rules for governing the practice in this court, numbered from I. to XIX., both inclusive, be adopted and published.

RULE I.

When the appeal is from a judgment, the return of the clerk of the court below shall consist of certified copies of the notice of appeal, and the judgment roll. When the appeal is from such an order as is mentioned in the eleventh section of the code of procedure, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order.

RULE II.

The appellant shall cause the proper return to be made and filed with the clerk of this court within twenty days after the appeal shall be perfected. If he fail to do so, he shall be deemed to have waived the appeal; and on an affidavit proving when the appeal was perfected, 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

*No general rule or order of the court of appeals, or of the supreme court, shall be of any force or effect until it shall have been published in the newspaper at Albany in which legal notices are by law required to be published, once in each week for three successive weeks. (Laws of 1847, cap. 470, p. 639, s. 4.)

prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal.

See note to section 328 of the code.

An affidavit of the respondent is sufficient to prove when the appeal was perfected.

See note to section 339 of the code, as to when the appeal is "perfected."

When the printed case or error-book does not show a return made by the clerk below, the appellate court have no authority to hear the argument. The People v. Barron, 6 Pr. R., 81.

RULE III.

If the return made by the clerk of the court below shall be defective, either party may, on an affidavit specifying the defect, apply to one of the judges of this court for an order that the clerk make a further return without delay.

See note to section 328 of the code.

RULE IV.

The attorneys and guardians ad litem of the respective parties in the court below, shall be deemed the attorneys and guardians of the same parties respectively in this court, until others shall be retained or appointed, and notice thereof shall be served on the adverse party.

RULE V.

In all calendar causes a case shall be made by the appellant, which shall consist of a copy of the return of the clerk, and the reasons of the court below for its judgment, if the same can be procured. If the case is voluminous, an index to the pleadings, exhibits, depositions, and other principal matters shall be added.

RULE VI.

All cases and points, and all other papers furnished to the court in calendar causes, shall be printed on white writing paper, with a margin on the outer edge of the leaf not less than one and a half inch wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long, and three and a half inches wide. The folio, numbering from the commencement to the end of the case, shall be printed on the outer margin of the page.

RULE VII.

Within forty days after the appeal is perfected, the appellant shall serve three printed copies of the case on the attorney of the adverse party. If he fail to do so, he shall be deemed to have waived the appeal; and on an affidavit proving the default, 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.

This rule applied to appeals pending when this rule was adopted. Brooks, 2 Code Rep., 130.

Dresser v.

See note to section 339 of the code, as to when the appeal is perfected; and see

Newton v. Harris, 1 Code Rep. N. S., 191.

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RULE VIII.

Either party may bring on the argument on a notice of eight days; which notice, except in criminal cases, shall be for the first day of the

term.

A copy of the notice, specifying the judicial district in which the cause originated, shall be furnished to the clerk eight days before the first day of the term.

The clerk shall make a calendar of the causes thus noticed, arranging them in the order in which the returns were filed, specifying the judicial district in which the causes originated respectively.

Copies of the calendar for the use of the judges, and five other copies to be delivered to the clerk, shall be printed in like manner as cases and points are directed to be printed.

See Wilkin v. Pearce, 4 Pr. R., 26, in note to section 256 of code.

RULE IX.

At the commencement of the argument the appellant shall furnish a printed copy of the case to each of the judges, and shall deliver six other copies to the clerk. Each party shall at the same time furnish to each of the judges a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite; and shall deliver six other copies to the clerk, and three copies to the counsel of the adverse party.

The cases, points, and calendars delivered to the clerk shall be disposed of as follows: one copy of each shall be kept by the clerk with the records of the court, one copy shall be deposited in the State library, one copy shall be deposited in each branch of the library of the court of appeals, one copy shall be deposited in the library of the New York Law Institute, and one copy shall be delivered to the reporter.

The heads of an argument, together with the authorities cited, but not the argument at length, are embraced under the term " points." Gray v. Schenck, 3 Pr. R. 231.

RULE X.

In all cases each party shall briefly state upon his printed points, in a separate form, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found. And the court will not hear an extended discussion upon any mere question of fact.

RULE XI.

The party who has noticed and placed the cause on the calendar for argument, may take judgment of affirmance or reversal, as the case may be, if the other party shall neglect to appear and argue the cause, or shall neglect to furnish and deliver cases or points as required by the ninth and tenth rules.

RULE XII.

In the argument of calendar causes and motions, only one counsel will be heard on each side, unless the court shall otherwise direct.

RULE XIII.

Criminal cases shall have a preference, and may be moved, on behalf of the people, out of their order on the calendar.

RULE XIV.

Causes may be submitted by the parties on printed arguments.

RULE XV.

Motions will be heard on the morning of the first day, and the morning of each following Tuesday and Friday during the term, before taking up the calendar.

Where notice has been given of a motion, if no one shall appear to oppose, it will be granted as of course.

RULE XVI.

The remittitur shall contain a copy of the judgment of this court, and the return made by the clerk of the court below; and shall be sealed with the seal, and signed by the clerk of this court.

RULE XVII.

When a decree of order shall be affirmed or reversed by the default of either party, the remittitur shall not be sent to the court below, unless this court shall otherwise direct, until ten days after notice of the affirmance or reversal shall have been served on the attorney of the party in default. Service of the notice shall be proved to the clerk by affidavit, or by the written admission of the attorney on whom it was served.

RULE XVIII.

The time prescribed by these rules for doing any act may be enlarged by the court or by either of the judges thereof; and either 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 either of the other judges.

RULE XIX.

These rules shall take effect on the first day of July next (1849); from which time all former rules are abrogated, except so far as it may be necessary to follow them upon appeals and writs of error which shall be then pending.

ADDITIONAL RULES, ADOPTED JULY 1ST, 1852,

RULE XX.

Ten causes only will be called on any day, but after such call causes ready on both sides will be heard in their order. Any cause which is

regularly called and passed without postponement by the court for good cause shown, at the time of the call, will be placed on all subsequent calendars as if the return had been filed on the day when it was so passed.

Causes upon the calendar may be exchanged one for another, of course, on filing with the clerk in court a note of the proposed exchange with the numbers of the causes, signed by 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.

Any cause may be struck from the calendar of course, and without prejudice, by the clerk in court, on consent of both parties on either the first or fourth days of term.

RULE XXI.

The clerk must keep a memorandum of such exchanged and passed causes, and place them, upon all subsequent calendars, in accordance with the foregoing provisions.

Rules VI., X., XX., and XII., with a notice that " 14 copies of cases and points are required," must be printed on the first leaf of the calendar. Ordered, That the rule adopted at June Term, 1850, relative to the call of the calendar, be abrogated.

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