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§ 470. (Am’d 1851, 1852.) Judges to meet and make general rules.
The judges of the supreme court, of the superior court of the city of New York, and of the court of common pleas for the city and county of New York, shall meet in general session at the capitol in the city of Albany, on the first Wednesday in August, 1852, and every two years thereafter; and at such sessions shall revise their general rules, and make such amendments thereto, and such further rules not inconsistent with this code, as may be necessary to carry it into full effect.
The rules so made shall govern the supreme court, the superior court of the city of New York, the court of common pleas for the city and county of New York, and the county courts, so far as the same may be applicable.
§ 471. [390.] (Am’d 1849, 1852, 1862, 1863.) This act not to affect certain proceedings and statutory provisions.
Until the legislature shall otherwise provide, the second part of this act shall not affect proceedings upon mandamus or prohibition; nor appeals from surrogates' courts, except that the costs on such appeal shall be regulated and allowed in the manner provided in section three hundred and eighteen of this act; nor any special statutory remedy not heretofore obtained by action; nor any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided; nor any proceedings provided for by chapter five of the second part of the Revised Statutes, or by the sixth and eighth titles of chapter five of the third part of those statutes, or by chapter eight of the same part, excluding the second and twelfth titles thereof, or by the first title of chapter nine of the same part; except that when, in consequence of any such proceeding, a civil action shall be brought, such action shall be conducted in conformity to this act; and except, also, that where any particular provision of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed.
In actions or proceedings by mandamus, amendments of any mistakes in the process, pleadings or proceedings therein may be allowed, and shall be made in conformity to the provisions of chapter six, title six, of the second part of the Code of Procedure.
$ 472. Certain parts of Revised and other Statutes not repealed.
Nothing in this act contained shall be taken to repeal section 23 of article 2 of title 5 of chapter 6, part third, of the Revised Statutes, or to repeal an act to extend the exemption of household furniture and working tools from distress for rent and sale under execution, passed April 11, 1842.
§ 473. [391.] (Am’d 1849.) This act, when to take effect.
This act shall take effect on the first day of July, 1848; except that sections 22, 23, 24 and 25 shall take effect immediately.
RULES OF COURT.
COURT OF APPEALS.
RULE I. The return.—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. Appellant to file return ; effect of his omission.—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, the respondent may, by notice in writing, require such return to be filed within ten days after service of the notice; and if the return be not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affidavit proving when the appeal was perfected, and the service of such notice, 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 prosecution, with costs ; and the court below may thereupon proceed as though there had been no appeal.
RULE III. Further return may be ordered. 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.
RULE IV. Attorneys and guardians below to continue to act.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 to the adverse party.
RULE V. Appellant to make a case ; its form.-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, or an affidavit that the same cannot be procured. If the case is voluminous, an index to the pleadings, exhibits, depositions, and other principal matters shall be added.
Every opinion in the cause, at special term as well as at gen-eral term, relating to the questions involved in the appeal, is included by the foregoing provisions.
RULE VI. Cases and points to be printed; mode of printing.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. Small pica, solid, is the smallest letter and most compact mode of composition which is allowed. No charge for printing the papers mentioned in this rule shall be allowed as a disbursement in a cause, unless the requirements of the preceding sentence shall be shown by affidavit to have been complied with, in all papers printed after August 1, 1857. RULE VII. Appellant to serve copies of case ; effect of his default
. - 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, the respondent may, by notice in writing, require the service of such copies within ten days after the service of the notice, and if the copies be not served in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affidavit proving the default, and the service of such notice, 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.
RULE VIII. Notice of argument ; calendar.–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 six other copies to be delivered to the clerk, shall be printed, in like manner as cases and points are directed to be printed.
RULE IX. Copies of cases for judges and copies of points for the court and adverse party.--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 authority 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.
RULE X. Statement of facts on the points. Discussion on questions of fact. In all cases each party shall briefly state upon his printed points the leading facts which he deems established, with à 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. Judgment of affirmance or reversal by default.—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 of points as required by the ninth and tenth rules.
RULE XII. Only one counsel to be heard on each side, unless by order.-In the argument of calendar causes and motions, only one counsel shall be heard on each side, unless the court shall otherwise direc
RULE XIII. Criminal cases preferred on calendar.-Criminal cases shall have a preference, and may be moved, on behalf of the people, out of their order on the calendar.