and subsequent thereto, are fully set forth, in the papers upon which the application is made. $778. A person making an application, forbidden by the last two sections, with knowledge of the previous application, shall be punished by the court, for a contempt. § 779. [Am'd 1877, 1879, 1882, 1884.1 Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or if no time is so fixed, within ten days after the service of a copy of the order, an execution against the personal property only of the party required to pay the same, may be issued by any party or person to whom the said costs or sum of money is made payable by said order, or in case permission of the court shall be first obtained by any party or person having an interest in compelling payment thereof, which execution shall be in the same form, as nearly as may be, as an execution upon a judgment, omitting the recitals and directions relating to real property; and all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed without further direction of the court, until the payment thereof. But the adverse party may, at his election, waive the stay of proceedings. Where the order directs that the cost of a motion abide the event of the action, or where costs of a motion, awarded by an order, have not been collected when final judgment is entered, they may be taxed as part of the costs of the action or set off against costs awarded to the adverse party, as the case requires. But nothing herein contained shall be so construed as to relieve a party or person from punishment as for contempt of court for disobediance to an order in any case when the remedy of enforcement by such proceedings now exist. TITLE VI. Miscellaneous practice regulations. ARTICLE 1. General regulations respecting time. 2. Preferred and deferred causes. 3. Service of papers. 4. Discovery of books and papers. 5. General regulations respecting bonds and undertakings. § 780. [Am'd 1890.] Where special provision is not other- 1 Civ. Pro. wise made by law, or by the general rules of practice, if notice 17, 464. of a motion, or of any other proceeding in an action, before a 25 Hun, 254; court or a judge, is necessary, it must, if personally served, 49 Id. 238. be served at least eight days before the time appointed for the hearing; unless the court or a judge thereof, or a county judge of the county where the action is triable, or in which the attorney for the applicant resides, upon an affidavit show. ing grounds therefor, makes an order to show cause why the application should not be granted; and, in the order, directs that service thereof, less than eight days before it is returnable, be sufficient. § 781. Where the time, within which a proceeding in an action after its commencement, must be taken, has begun to run, and has not expired, it may be enlarged, upon an affidavit showing grounds therefor, by the court, or by a judge authorized to make an order in the action. $782. In a case specified in the last two sections, the affidavit, upon which the order was granted, or a copy thereof must be served with a copy of the order; otherwise, the order may be disregarded. § 783. After the expiration of the time, within which a pleading must be made, or any other proceeding in an action, after its commencement, must be taken, the court, upon good cause shown, may, in its discretion, and upon such terms as justice requires, relieve the party from the consequences of an omission to do the act, and allow it to be done; except as otherwise specially prescribed by law. 6N. Y. Supp. 581. § 784. A court, or a judge, is not authorized to extend the time, fixed by law, within which to commence an action: or to take an appeal; or to apply to continue an action where a party thereto has died, or has incurred a disability for the time fixed by the court, within which a supplemental complaint must be made, in order to continue an action; or an action is to abate, unless it is continued by the proper parties. A court, or a judge, cannot allow either of those acts to be done, after the expiration of the time fixed by law, or by the order, as the case may be, for doing it; except in a case specified in the next section. § 785. [Am'd 1877.] Where a party entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies either before or after this chapter takes effect, and before the expiration of the time within which the appeal may be taken, or the motion made, the court may allow the appeal to be taken, or the motion to be made, by the heir, devisee, or personal representative of the decedent, at any time within four months after his death. 786. Where an action is brought for the collective benefit of the creditors of a person, or of an estate, or for the benefit of a person or persons, other than the plaintiff, who will come in and contribute to the expense of the action, notice of a direction of the court, contained in a judgment or order, requiring the creditors, or other person or persons to exhibit their demands, or otherwise to come in, must be published, once in each week, for at least three successive weeks, and as much longer as the court directs, in the newspaper, published at Albany, in which legal notices are required to be published, and in a newspaper, published in the county where the act is required to be done.* 787. The period of publication of a legal notice, in an action or special proceeding, brought in a court, either of record or not of record, or before a judge of such a court, must be computed, so as to exclude the first day of publica * See L. 1884, c. 133, repealing all acts providing for a State paper. tion, and include the day, on which the act or event, of which notice is given, is to happen, or which completes the full period of publication. $788. [Repealed by Statutory Construction Law, L. 1892, c. 677.] ARTICLE SECOND. PREFERRED AND DEFERRED CAUSES. 8 789. Preference of certain actions by the people. 790. Id.; of criminal actions. 791. Id.; among civil actions. 792. Id.; in mandamus or prohibition. 2793. When an order is neces sary. 794. When cause passed, how 795. Note of issue to state time S789. A trial, a motion, appeal, or hearing, in an action by the people to recover money, funds, credits, or other property, held or owned by the State, or held or owned, officially or otherwise for, or in behalf of, a public or governmental interest, by a municipal or other public corporation, or by a board, officer, custodian, agency or agent of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of '; or to recover damages, or other compensation, for so obtaining, receiving, paying, converting, or disposing of the same; or the aiding or abetting thereof; is entitled, on the application of the Attorney-General, to a preference over any other business, at a term or sitting of any court of the State, irrespective of its place upon the calendar. § 790. A criminal action, including an appeal or other proceeding in a criminal cause, is entitled, under the direction of the court, to preference in the trial or hearing thereof, over all civil actions and special proceedings, except as prescribed in the last section. § 791. [Am'd 1877, 1879, 1852, 1883, 1884, 1887.] Civil causes are entitled to preference among themselves, in the trial or hearing thereof, in the following order, next after the causes specified in the last section but one : 67 How. Pr. 510. 25 Hun, 490. 83 N. Y. 527. 1. An action or special proceeding brought by or against 92 N. Y. 647. the people of the State, or by or against any State officer or board of State officers as such, and in which the people or such officer or board, appear by the Attorney-General; where the Attorney-General has given notice, at the time of service or notice of trial or argument, of a particular day in the term on which he will move it. If the action or special proceeding is not moved by him for trial or argument on that day, or as soon thereafter in the same term as the court can hear it, the other party may then move the trial or argument; otherwise it shall not be moved out of its order at that term, except by the special order of the court. 2. An action or special proceeding in which the mayor, ald ermen and commonalty of the city of New York, or a board of officers, exercising powers conferred by a statute for the protection of public health, of public or private property, or for the prevention or punishment of violations of a statute relating to either of those subjects, or the commissioners of pilots in the city of New York, are parties; where a notice similar to the notice prescribed in the last subdivision, has been served by their attorney at the time of service of the notice of trial or argument. The provisions of the last subdivision, relating to moving the trial or argument, apply to a cause within this subdivision. 3. In the court of appeals or the supreme court, an appeal taken by either party, in an action or special proceeding, other than as specified in subdivision first of this section, where the people of the State, or a board of State officers are sole parties, or a State officer is sole party, plaintiff or defend ant. 4. In the court of appeals, an action, a party to which has died, pending the action, where the pendency of the action prevents a final settlement of the estate of the deceased party. 5. In any court, an action or special proceeding in which an executor, or an administrator, or an infant, or a receiver appointed by the court, or general assignee for the benefit of creditors, is the sole plaintiff or sole defendant; an action or special proceeding for the construction of, or an adjudication upon a will, in which the administrator, with the will annexed, or the executor of the will is joined, as plaintiff or defendant, with one or more other parties, and in the court of appeals or the supreme court, an appeal from the decree or decision of a surrogate's court, determining a will to be valid and admitting it to probate, or determining an instrument offered for probate as a will to be invalid or not entitled to probate as such, or granting general letters of administration or directing the distribution of a fund or payment of money by an executor or an administrator in pursuance of an order or decree made on an intermediate, final or judicial accounting or otherwise by an administrator or an executor. 6. An action for dower, where the plaintiff makes proof, by 92 N. Y. 646. affidavit, to the satisfaction of the court, or a judge thereof, that she has no sufficient means of support, aside from the estate in controversy. 113 N.Y.617. 18 Abb. N. C. 473. 21 Hun, 409. 201. 7. An action against a corporation or joint-stock association, issuing bank notes or any kind of paper credits to circulate as money, or by or against the receiver of such corporation or association. An action in which a county or town is sole plaintiff or defendant. 8. An action against a corporation founded upon a note or other evidence of debt, for the absolute payment of money. An action upon an undertaking given upon an appeal to the court of appeals or to stay the execution on an appeal to the court of appeals. 9. An action against a sheriff, in his official capacity, or an action by a sheriff or late sheriff, to recover for a breach of the obligation of a bond or bonds, or an instrument or instruments of indemnity, or an undertaking or undertakings given to him in his official capacity. 10. A cause entitled to preference by the general rules of 4 Civ. Pro. practice, or by the special order of the court in the particular case. Where an issue of law and an issue of fact, or two or more other questions of different natures, come before the same term of the court for trial or hearing, the preference 135 N.Y. 634. given by this section affects only the order in which the issues or questions of the same nature are to be disposed of. $792. Where a writ of mandamus or of prohibition has been issued, from the general term, to a special term, or a judge of the same court, the cause may, in the discretion of the court, or, where an appeal is taken therein to the court of appeals, in the discretion of that court, be preferred over any of the causes specified in the last section. $ 793. [Am'd 1879, 1888.] No action or special proceeding shall be placed as a preferred cause upon the calendar of any circuit court or trial term or special term of any court, but the party desiring a preference of any cause shall serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court, at the opening thereof, for leave to move the same as a preferred cause; and if the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the cause is to be tried, the notice must be accompanied by an affidavit showing such facts. The application for a preference shall be made at the opening of the court, and if it shall appear that the cause is entitled to a preference and is intended to be moved for trial at the term at which the application is made, the court may direct that it shall be so heard. Where the right to a preference, in an appellate court, depends upon facts which do not appear in the pleadings or other papers upon which the cause is to be heard, the party desiring a preference must procure an order therefor from the court or a judge thereof upon notice to the adverse party. A copy of the order must be served with or before the notice of argument. Such an order is not appealable; but it may be vacated by the judge or judges holding the term at which the preferred cause is noticed for hearing. But a preliminary order is not requisite, in an appellate court, in a case embraced within subdivision first or second of section seven hundred and ninety-one; and the order in a case embraced within subdivision six of that section may be made ex parte, in the appellate court, and is conclusive. $ 794. [Am'd 1888, 1889.] When any action or special proceeding, placed upon the calendar of a term of a court of record, held in the city and county of New York, is regularly called and passed, or is put over the term by stipulation, without a postponement by the court, for good cause shown, it must thenceforth be placed on the same or a future calendar as if the date of the issue was the time when it was thus passed; and any cause which shall be thus passed or put over the term, after it has been advanced as a preferred cause, shall lose its right to a preference. $795. In a case specified in the last section, the party 2 1083 Conplacing the cause upon the calendar, for a subsequent term, sol. Act. must state, in the note of issue, the date of the issue, as prescribed in that section. If he omits to do so, by reason whereof the cause retains its priority on the calendar, the court, on the application of the adverse party, or of its own motion, may strike the cause from the calendar. ARTICLE THIRD. 796. Paper may be served personally. Style and weight of paper regulated. 797. Other modes of service. |