TO ATTORNEYS

A printed copy of the Appeal Papers shall be filed in the office of the clerk of the Appellate Division within twenty days after an Appeal has been taken, etc. The copy so filed shall be certified by the proper clerk, or be stipulated by the parties to be true copies of the original. (Rule 41, General Rules of Practice.)

This shall be done before an appeal shall be placed upon the calendar. Code Civ. Pro.)

(Sec. 1353, Attorneys should also notice that Rule 41 requires three copies of the Appeal Papers to be served within the same time upon the opposite party.

Notes of issue shall be filed in the Clerk's office eight days before the commencement of the court at which the cause may be noticed. (Rule 39, General Rules of Practice.)

Notes of issue shall specify whether the Appeal is to be placed upon the non-enumerated or general calendar, and where a preference is desired, the note of issue must state the claim for preference as provided in Section 793 of the Code, and indicate the class to which it belongs. (Rules 1 and 3, Third Dept.)

Attention is also called to Special Rule 6 of this department, requiring notice to the Clerk if a party desires the case put upon the Day Calendar when reached in its order upon the General Calendar.

Thirteen (13) copies of the Appeal Papers and points must be delivered to the Clerk before the commencement of the argument.

RULES OF APPELLATE DIVISION, FOURTH DEPARTMENT

Rule 1. Notes of issue in appeals from orders No appeal from an order will be heard unless it is placed on the non-enumerated calendar. The attorney or party intending to move such an appeal for argument shall, at least eight days before the time of the making up of the calandar, file with the clerk a note of issue, specifying the date of the service of the notice of appeal, and stating that the case is to be put on the non-enumerated calendar. No case shall be put upon the enumerated or nonenumerated calendar until the papers required by General Rule 41 shall have been filed with the clerk.

Rule 2. Notes of issue in preferred cases. A party who desires to have a case heard as a preferred case, must in his note of issue, state his claim for preference, as provided in Section 793 of the Code; or if an order giving the case a preference has been made under that section, the note of issue must be accompanied with a copy of such order. The clerk in making up the calendar shall place such preferre·l cases at the head of the general calendar, indicating that they are preferred, and the class to which they belong.

Rule 3. New calendar, when to be made. Passed cases. When a new calendar is ordered by the court, the clerk shall place thereon all cases which remain undisposed of on the former calendar, and all other cases in which notes of issue have been filed in his office. If a case shall have been passed, it shall go upon the calendar as of the time when it was passed, and the fact that it was passed shall be stated upon the calendar.

Rule 4. Criminal cases may be put upon the calendar at any time. Appeals in criminal cases, brought after making up the calendar, or too late to be placed upon the calendar, may be put upon the calendar at any time and brought on for hearing as preferred cases, upon a notice of ten days to the adverse party, as provided in section 535 of the Criminal Code. A note of issue must be filed with the clerk at least five days before the day on which the case is to be heard, and he shall put the same on the calendar for the day on which it shall be noticed, or upon which it shall be ordered by the court, or stipulated by the parties to be heard.

Rule 5. Day calendar to be made by clerk. The clerk shall prepare at three o'clock p. m. of each day, a day calendar for the next day, to consist of ten cases, or such: other number as the court shall direct, including those undisposed of on the then day calendar. They shall be taken from the general calendar in their order thereon, subject to the provisions of Rule Six. Cases not disposed of on any day shall be placed at the head of the calendar for the next day, until disposed of.

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Rule 6. Notice to clerk no longer necessary, etc. It shall not be necessary to notice cases for the day calendar. Any case on the general calendar may, by stipulation of the parties, filed with the clerk at any time before the case is placed upon the day calendar, be reserved for a day certain, except that no stipulation shall be made or filed reserving any of the first fifty cases on the general calendar beyond the first week. Cases so reserved for a day certain shall not be placed upon the day calendar for any day prior to that to which they have been so reserved. No case shall be put upon the day calendar unless the papers and points have been delivered to and filed with the clerk. Cases which cannot be placed upon the day calendar in their regular order or at the time to which they have been reserved by reason of the non-filing of the papers and points, will be regarded as passed for the term.

Rule 7. Clerk to telegraph day calendar. The Clerk shall on each day during the term, immediately on making up the day calendar, telegraph the numbers of the cases upon it to the county clerks at Buffalo, Syracuse, Utica, Oswego, Lockport, Auburn and Watertown, and the county clerks receiving said telegrams are directed to post or bulletin the same in such manner as shall be most convenient for attorneys and others desiring to see the same, and also to procure the publication of such telegrams in the newspapers of their respective cities,

Rule 8. Reservations and submissions. Cases will not be received upon submission until reached in the regular call of the calendar. No reservation will be made of any of the first eight cases upon the general calendar unless on account of sickness, or an engagement of counsel elsewhere in the actual trial or argument of another case in a court of record, commenced before the term of this court, or other inevitable necessity to be shown by affidavit. Other cases may be reserved upon reasonable cause shown, or by stipulation of parties, filed with the clerk, but no case shall be so reserved by stipulation after the same has been placed upon the day calendar.

Cases reserved for a day certain by stipulation, when in order to be called, have priority among each other according to their number on the calendar, and shall follow next in order the undisposed of cases of the calendar for the day previous. Default may be taken in them, and they will, if passed, be put upon future calendars as if passed in the regular call.

Every cause shall be deemed to be submitted to such justices as may be absent from the court at the time of the argument, unless objection to such submission by counsel arguing the cause be then made.

Rule 9. Papers to be filed with the clerk and exchange of briefs. Within fifteen days after the service of the printed papers required to be served by General Rule 41 in enumerated motions, the party whose duty it is to furnish those papers shall file with the clerk sixteen printed copies of the papers and sixteen printed copies of his brief and the points upon which he intends to rely upon the argument, with a reference to all the authorities which he intends to cite to the court; and shall, at the same time, serve on the attorney or counsel for the other party three copies thereof. Within seven days thereafter the other party shall file with the clerk sixteen printed copies of his brief and points, with a reference to all his authorities, and serve on the attorney or counsel for the moving party, three printed copies thereof. If either party shall fail to serve and file his brief and points, as herein required, he shall not be heard upon the argument, and judgment may be entered against him, as upon default, on application to the court on any motion day upon three days' notice.

If the moving party desires to serve an answering brief, he shall file with the clerk sixteen printed copies thereof, and serve upon his opponent three printed copies, within five days after the receipt of his opponent's brief. He shall not include in his answering brief, any matter which is not in the nature of an answer to the brief to which it purports to reply. No supplemental briefs will be allowed unless requested by the court. This rule shall not apply to appeals from non-enumerated motions. It shall apply to all cases which shall be put upon the day calendar upon and after the first day of March, 1896. Upon the argument of all cases before that time, the moving parties shall furnish to the clerk sixteen copies of the case, and each party shall furnish to the clerk sixteen copies of his brief. The clerk shall distribute the cases and briefs as prescribed in General Rule 43, and he

shall, in addition, deliver one copy of each to the Librarian of the Law Libraries in Buffalo, Rochester and Syracuse, to be bound and indexed for reference.

Rule 10. Information, attorneys shall prefix in brief. The moving party, in addition to the statement required in General Rule 41, shall prefix to his points a brief statement, showing when and in what court or before what officer or tribunal the action or proceeding was instituted, the relief sought, the defense or grounds of opposition thereto, the result in the court or before the officer or tribunal in which the action or proceeding was commenced, the proceedings subsequent to the first decision, and how the case was brought into this court. If any opinion written in the case has been previously reported, he shall also state where it was so reported. If any opinion has been written which has not been reported, the party whose luty it is to furnish the papers, shall submit a printed copy of such opinion to the court, in the record.

Rule 11. Endorsement on brief. The counsel who argues the case shall endorse on his brief, delivered to the judges, his name and place of residence.

Rule 12. Exchange of cases. No exchange of cases will be allowed unless both cases are ready for argument, and counsel intend to argue them at the same term at which the exchange is made; and when cases are exchanged, each shall occupy the proper position of the other in date, on the same and every subsequent calendar, until heard. A preferred case exchanged for one not preferred, or set down for a particular day, shall lose its preference, and no case will be called more than once during the same term, unless it shall have been reserved or postponed with the consent of the court.

Rule 13. Non enumerated calendar to be disposed of at opening of term. Argument of appeals on the non-enumerated calendar will be heard only upon the first day of a term and the hearing of such appeals will be continued from day to day until they shall all be disposed of before the general calendar shall be taken up, but submission of appeals from the non-enumerated calendar will be received on any day during the term. Original motions in this court may be noticed for the first day of a term or for the Friday of any subsequent week of the term.

Rule 14. Motions for re-argument and leave to appeal. Motions for re-argument or for leave to appeal to the Court of Appeals will be heard only on notice to the adverse party, stating briefly the ground upon which a re-argument is asked, or upon which leave to appeal is desired, and such motions may be submitted upon five copies of printed or typewritten papers and briefs, stating concisely the points supposed to have been overlooked or misapprehended by the court, or the questions of law sought to be reviewed upon appeal to the Court of Appeals, with proper reference to the particular portion of the case and the authorities relied upon with a copy of the opinion, if any, delivered by the court in deciding the case. Oral argument on such motions will not be heard, and it is unnecessary for counsel to appear on such motions. They may be submitted by mailing papers to the clerk.

Rule 15. Remittitur. The remittitur to be transmitted pursuant to section 1,355 of the Code shall contain a copy of the judgment or order of this court, and the record which has been filed with the clerk, and shall be sealed with the seal and signed by the clerk of this court.

Rule 16. Official examiner of title. An official examiner of title, before he is licensed and admitted to practice as such, must file the bond required by Rule 3 of the Rules of the Court of Appeals relating to applications to practice as official examiners of title, approved by the presiding justice of the Appellate Division of the Supreme Court in this department. In case of the death or insolvency of either of the sureties, the official examiner of title must forthwith file a new bond with new sureties fully complying with said rule. Each applicant for a license as an official examiner of title must also produce such evidence of character and as to the standing in regard to financial transactions as the Appellate Division of this Department may_require.

Rule 17. New calendar. A new calendar will be made up for the January Term. Cases not upon the printed calendar may thereafter be noticed for argument for any day of the term, and may be added to the calendar, after the printed records have been filed, upon filing with the clerk a note of issue and proof of service of notice of argument; and will be placed upon the day calendar when reached in their regular order; but no case will be placed upon the day calendar until the briefs have been filed, without special order of the court.

Rule 18. Appeal dismissal. After an appeal has been taken to this court the appeal may be dismissed on motion upon notice of three days for failure by appellant to make, or serve, his proposed case, or to procure the settlement thereof, or to print, serve and file the record, or to serve and file his points, or for any other unreasonable delay upon his part in prosecuting the appeal. If the respondent fails to serve or file his points within the time allowed therefor, the appellant may serve upon respondent a written demand that the respondent file and serve his points, and upon filing proof of service of such demand and showing that three days have elapsed since such service, and that the respondent has not served and filed his brief, the case may be placed upon the day calendar when reached in its regular order, and the respondent shall not be heard upon the argument of the appeal except by leave of the court.

RULES OF APPELLATE TERM, FIRST DEPARTMENT

Rules for the Hearing of Appeals from the City Court of The City of New York and from the Municipal Court in the Boroughs of Manhattan and The Bronx.

(As amended to September, 1921.)

Rule 1. Terms. There shall be a term of the Supreme Court for the hearing of appeals from the City Court and the Municipal Court of the City of New York, in the Boroughs of Manhattan and The Bronx which shall commence on the first Monday of October, November, December, January, February, March, April, May and June in each year and shall continue from day to day during each of said months until all appeals ready for hearing are heard and disposed of. This term of the court shall hold its sessions in the Court House in the County of New York, and shall be held by three Justices of the Supreme Court, duly designated to hold said term, and shall be known as the Appellate Term.

Rule 2. Calendar of appeals. The clerk of such term of the Supreme Court shall make up a calendar of all appeals to be heard each term and publish the same in the Law Journal at least eight days before the commencement of the term.

All appeals from the City Court in which the return duly printed as required by the General Rules of Practice has been duly filed with the clerk of such term at least ten days before the first day of the term, with ten printed copies thereof and an admission of service or an affidavit showing the service of three printed copies upon the attorney for the respondent, shall be placed upon such calendar.

All appeals from the Municipal Court in which the return made up as required by Rule 4 of this court has been filed with the clerk of such term at least ten days before the commencement thereof shall be placed upon such calendar.

Appeals shall be placed upon the calendar in the order in which the same are filed and shall continue thereon until disposed of. An appeal may be brought to a hearing upon notice by either party of not less than eight days, which notice must be filed as provided by Rule 5 of this court. If, after being regularly placed upon the calendar, neither party brings it to a hearing until after the same has been on the calendar for at least two terms, the court must dismiss the appeal unless it directs the same to be continued for cause shown.

If the appellant does not appear upon the call of the calendar, the judgment or order appealed from shall be affirmed. If the appellant appears and the respondent fails to appear, the appellant may either argue or submit his case, but judgment of reversal by default will not be allowed.

Upon an appeal from the City Court the judgment or order of the court shall be entered in the office of the clerk of the Supreme Court; a certified copy of such judgment or order shall be annexed to the return from the City Court, which certified copy and return shall be transmitted to the City Court as required by section 1345 of the Code of Civil Procedure.

Upon an appeal from the Municipal Court the judgment or order of the Appellate Term shall be entered in the office of the clerk of the Supreme Court in the county embracing the district of the Municipal Court from which the appeal is taken, and a certified copy thereof annexed to the return received from the Municipal Court, which return and certified copy of the judgment or order shall be returned to the district of the Municipal Court from which the appeal was taken.

NOTES

The placing of an appeal upon the calendar alone, does not entitle an appeal to be heard. A notice of argument must also be served and filed (see Rule V). Either party may serve and file a notice of argument. A notice of argument once served and filed is sufficient. Townsend v. Keenan, 2 Hilt., 544.

If the appellant has served and filed a notice of argument, and has filed and served his briefs, and does not answer when the case is called, it will be marked "submitted" by the Court, the filing of the briefs being regarded as an appearance on the part of the appellant. At any time after the case appears upon the calendar, parties may, by stipulation, have the case marked "submitted" by the clerk and thus avoid the necessity of appearing upon the call of the calendar. In such cases, the briefs must be filed in accordance with Rule "V." If the appellant has filed no briefs, and answers when the case is called, the appeal will be dismissed, if the respondent has served and filed a notice of argument, otherwise, the respondent cannot oppose the postponement of the case by the appellant. If the appellant shows good reasons for failure to serve and file his briefs, the case will be put over the term, on payment of costs, or if the respondent consents to accept the appellant's briefs the case may be submitted and the respondent will be given time to file his briefs.

No judgment of reversal by default will be allowed.

The decision of the Appellate Term, when handed down is accompanied by a proper order or judgment of the Court. In appeals from the City Court, the Clerk causes the remittitur to be sent to the City Court, where the judgment or order of the Appellate Term is made the judgment or order of that Court. The City Court requires that a notice of three (3) days be given before the judgment of the Appellate Term will be made the judgment or order of that Court.

Upon the decision of an appeal from the Municipal Court, the Clerk of the Appellate Term immediately sends the return to the Clerk of the District from which it came, with a certified copy of the judgment or order of the Appellate Term. The prevailing party may then proceed to tax the costs and the Clerk will enter his judgment.

When a new trial is ordered in the Municipal Court, the judgment of the Appellate Term fixes a date for the new trial therein, and the Clerk of the lower Court places the case upon the calendar for that date.

A resettlement of an order may be asked for upon two (2) days' notice (see Rule "VIII," Post). If a motion for such resettlement is denied, it is usually denied, with costs. A copy of the proposed resettled order should be submitted with the moving papers and such order should recite that it should take the place of the original order, giving the date of such original order.

Rule 3. Failure to file printed papers and motion for dismissal therefor. In appeals from the City Court, in case the appellant does not cause the printed papers to be filed with the clerk of the Appellate Term and serve three (3) copies thereof upon the attorney for the respondent, as required by the General Rules of Practice, within twenty (20) days after the settlement of the case on appeal, and in case of an appeal from an order of the City Court within fifteen (15) days after service of the notice of an appeal upon the attorney for the respondent, the respondent may move, upon three days' notice on any day of the term, to dismiss the appeal, and the appeal shall be dismissed unless the time of the appellant to cause such printed papers to be filed and copies thereof to be served be extended by the justices assigned to hear such appeals, or one of them, for good cause shown.

In appeals from judgments, final orders or orders of the Municipal Court of the City of New York, in which a case is settled as provided in subdivisions 1 and 3 of section 161 of the Municipal Court Code, the appellant must, within five days after service of the notice of appeal, deposit with the clerk the fees of the stenographer for a transcript of the minutes; the stenographer must within ten days thereafter file said transcript with the clerk, who shall immediately notify the appellant or his attorney of the receipt of same; the appellant or his attorney must within two days after receipt of such notice procure the case to be settled on a written notice of at least three days to the clerk and to the attorney for the respondent or to the respondent, if he has not appeared by attorney, returnable before the justice who tried the case; and the clerk must within two days after the settlement of the case by the trial justice file the return made up as required by Rule 4 of this court with the clerk of the Appellate Term; and in case of an appeal from a judgment, final order or order of the Municipal Court, in which no case is settled, the clerk must file the return made up as required by Rule 4 of this court within fifteen (15) days after