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may direct such judgment and decree to be entered as the surrogate should have made (Pilling v. Pilling, 42 Parb. 86; see, however, Johnson v. Hicks, 1 Lans. 150).
a. On the reversal of a surrogate's decree admitting an instrument to record and probate as a will, may the court adjudge the instrument void, or must the judgment be simply of reversal? (Mead v. Mead, 11 Barb. 661).
b. On appeal from a final decree of a surrogate, the supreme court may receive newly discovered evidence in addition to the evidence which was before the surrogate (Caujolle's Appeal, 9 Abb. 393).
c. Where an objection to the competency of a witness examined before a surrogate is not raised there, it will be deemed to have been waived, and cannot be raised on appeal (McDonough v. Loughlin, 20 Barb. 238).
d. Where there is a doubtful question of fact, the court will reverse the surrogate's decree, and order issues to be tried by a jury (Patchen v. Devin, 37 Barb. 430).
e. Where the decision of a surrogate admitting a will to probate has, on appeal, been reversed on the ground that the evidence before him was insufficient, he may try the question as to the validity of the will a second time (Mead v. Mead, 18 Barb. 578).
f. Where, on an appeal from the decision of a surrogate refusing to admit a will to probate, the decision was reversed (by the circuit judge), and a feigned issue ordered, upon which issue the appellant received a verdict by default,-held, that a motion to set aside such verdict must be made before the surrogate (Re Hicks, 4 How. 316).
g. Costs. The costs of an appeal from a surrogate's court are regulated by the code (see § 318).
h. Where several parties to a proceeding before a surrogate, appeal by dif ferent attorneys who are partners, they are entitled to only a single bill of costs; and the fact that the appellate court decides in each appeal that the order appealed from be reversed with costs, will not prevent the application of this rule (Brockway v. Jewett, 16 Barb. 590).
i. The compensation for the printed papers furnished the court is limited to the disbursement for the printing (b.)
j. Where, on an appeal from a decision of a surrogate, the decision is af firmed by the supreme court, and on appeal to the court of appeals both decisions are reversed without costs," the appellant is not entitled to costs in either court (Macgregor v. Buell, 17 Abb. 32).
k. Upon an appeal from the surrogate to the supreme court, the successful party is entitled only to the costs of a trial of an issue of law (Morgan v. Morgan, 1 Abb. N. S. 40; contra, see Seguine v. Seguine, 3 id. 442).
1. Costs in surrogates' courts are to be taxed according to the common pleas fee bill of 1837 (Lee v. Lee, 16 Abb. 127).
m. The surrogate, in proceedings before him, may award costs to be taxed, but he has no power to make an arbitrary allowance for counsel fees, and such counsel fees as may be taxable are to be allowed to the party and not to his counsel (Devin v. Putchin, 26 N. Y. 441; see Lee v. Lee, 39 Barb. 172; and Laws 1863, p. 608, § 8).
n. The decision of a surrogate awarding costs on the final settlement of the accounts of administrators, may be reviewed on appeal (Wilcox v. Smith, 26 Barb. 317).
0. Appeal to court of appeals.—A judgment of the supreme court affirming an order of a surrogate denying a motion for leave to discontinue proceedings for accounting by a guardian and directing the proofs to be closed, is not appealable to the court of appeals (Tompkins v. Soulice, 7 How. 194).
p. An order of the supreme court reversing a final decree of a surrogate in a proceeding for an account, and directing the proceedings to be remitted to the surrogate with instructions, &c., is appealable to the court of appeals (Wagener v. Reiley, 4 How. 195; so is an order reversing a surrogate's decree admitting a will to probate for error in law (Talbot v. Talbot, 23 N. Y. 17).
a. A judgment of the supreme court reversing an order of a surrogate with costs, is not appealable to the court of appeals until the amount of costs are entered in the judgment and the judgment-roll is filed (McMahon v. Harrison, 5 How. 360).
See notes to §§ 318, 342.
RULE 45.-Points on motions. Discussion on facts.
In all enumerated motions, each party shall briefly state upon his printed points 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 on a mere question of fact.
RULE 46.-Cases, points, &c., how printed.
The cases and points, and all other papers furnished to this court at a general term 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 papers, shall be printed on the outer margin of the page.
b. The expense of printing is a disbursement (16 Barb. 590).
RULE 47.-Certiorari, when heard.
Every case on certiorari to subordinate courts, tribunals, or magistrates, may be brought to a hearing by either party, upon the usual notice of argument; and shall be entitled to preference on the morning of any day during the first week of term.
RULE 48.-Nonenumerated motions, hearing of.
Nonenumerated motions made in term time, at a general term, will be heard on the first day, and Thursday of the first week, and Friday of the second week, of the term, immediately after the opening of the court on that day. Except in the first judicial district, a party attending pursuant to notice, to oppose a nonenumerated motion, if the same shall not be made on the day for which it is noticed, may, at the close of that order of business, take a rule against the party giving the notice, for costs for attending to oppose.
Motions in criminal cases may be heard on any day in term.
c. A criminal case cannot be moved out of its order on the calendar by the defendant, unless the notice of argument states his intention of bringing it on out of its order (Barron v. The People, 1 Barb. 136; see Laws 1858, ch.
d. Actions in which executors or administrators are sole plaintiffs or sole
defendants have a preference in the supreme court at general term, and appeals which prevent the issuing of letters testamentary or of general administration have a preference in the supreme court over all actions except criminal cases, and may be moved out of their order accordingly (Laws 1860, ch. 167).
RULE 49.-Nonenumerated motions, how noticed.
Nonenumerated motions, except in the first district, shall be noticed for the first day of the term or sitting of the court, accompanied with copies of the affidavits and papers on which the same shall be made; and the notice shall not be for a later day, unless sufficient cause be shown [and contained in the affidavits served] for not giving notice for the first day.
a. The copies served should be perfect copies; see ante, p. 632, c; and see Trowbridge v. Didier, 4 Duer, 450; Hughes v. Wood, 5 id. 603, note; Graham v. Mc Coun, 5 How. 353.
RULE 50.-Motions to amend pleadings.
Motions to strike out of any pleading matter alleged to be irrelevant or redundant, and motions to correct a pleading on the ground of its being "so indefinite or uncertain, that the precise nature of the charge or defense is not apparent," must be noticed, before demurring or answering the pleading, and within twenty days from the service thereof.
See ante, p. 250, f.
RULE 51.-Proceedings on return to mandamus, &c.
The return to a writ of mandamus, or prohibition, having been filed, the party making such return may serve a notice upon the relator, requiring him to demur or plead thereto within twenty days after such service; and if no plea or demurrer to such return be interposed within that time, either party may notice the matter for a hearing at the next or any subsequent special term at which the same may, according to the practice of the court, be heard as a nonenumerated motion, and the same shall be heard and disposed of on the said return.
b. There is no statutory limitation of the time within which writs of mandamus may be obtained (The People v. Supervisors of Westchester, 12 Barb. 446). c. Service of notice of motion for a mandamus on a majority of the contracting board (a part of the canal board) of the State, including the chairman,—held a sufficient service (The People v. The Contracting Board, 20 How. 206).
d. Costs in mandamus cases (The People v. Flagg, 5 Abb. 232).
e. As to mandamus generally (see 7 How. 81, 124, 290; 11 How. 89; 6 Abb. 30; 12 Abb. 385).
RULE 52.-Additional allowances.
Applications for an additional allowance under the provisions
of the 309th section of the code of procedure, can only be made to the court before which the trial is had, or the judgment ren
a. The rule in the second district, adopted May, 1858, is, "that no allowance will be made in actions for the foreclosure of mortgages (except where a defense has been interposed and a trial has been had), beyond that specified and allowed by the act of 1857, and that in all cases motions for an additional allowance, on the ground that the actions are difficult or extraordinary, must be made before the close of the trial, when made before the court and a jury, or before the court alone. When the trial has been had before a referee or referees, the application must be made on notice, upon a certificate of the referee or referees, of the facts which render the allowance proper."
RULE 53.-Justice's return on appeal, amendment of.
On appeals from a justice's judgment, where the county court has not jurisdiction, by reason of relationship, &c., a notice of motion for an order to compel the justice to amend his return may be given in twenty days after the date of the certificate of the county judge, and not after that time.
RULE 54.-Number of counsel, &c.
At the hearing of causes either at a general or special term, not more than one counsel shall be heard on each side, and then not more than one hour each, except when the court shall otherwise order.
RULE 55.-Counsel to indorse proof of notice.
When a rule is obtained, either at a general or special term, by default, the counsel obtaining the same shall indorse his name, as counsel, on the paper containing the proof of notice; and the clerk in entering the rule, shall specify the name of such counsel.
RULE 56.-Orders on petitions.
Orders granted on petitions, or relating thereto, shall refer to such petitions by the name and description of the petitioners, and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. Any order or judgment directing the payment of money, or affecting the title to property, if founded on petition, where no complaint is filed, may, at the request of any party interested, be enrolled and docketed as other judgments.
See Barnard v. Heydrick, 2 Abb. N. S. 48.
RULE 57.-Time for complying with orders.
In all cases where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order
shall require such payment or performance, the party whose duty it shall be to comply therewith, shall have twenty days for that purpose, unless otherwise directed in the order. But, where costs to be adjusted are to be paid, the party shall have fifteen days to comply with the rule, after the costs shall have been adjusted by the clerk on notice, unless otherwise ordered.
a. This rule has no application to an order directing defendant to satisfy the part of plaintiff's claim by the answer admitted to be due (Baker v. Nussbaum, 1 Hilton, 549).
b. Where a new trial is granted on payment of the costs of the trial and subsequent thereto, the costs must be regularly adjusted before the time for their payment under this rule begins to run, and this notwithstanding the costs are fully stated in the judgment roll and require merely to be separated from the earlier costs in the cause (North v. Sergeant, 14 Abb. 224).
c. This rule applies to an order to file security for costs, which does not state any time for compliance therewith, and the plaintiff has twenty days in which to comply with such an order (Freeman v. Young, 3 Rob. 666). An appeal from such an order does not extend the time for compliance with it (id.)
d. Conditional order.-Where an order is granted on a condition, the condition must be performed within twenty-four hours, unless otherwise expressed in the order (Subin v. Johnson, 7 Cow. 421). An order granted on payment of costs is a conditional order, and it is of no force unless the costs be paid instanter, i. e., within twenty-four hours; and the party who is to pay costs must seek out the other party to make a tender of the costs (8 Johns. 272; 5 Paige, 82; 1 How. 7). And he must, at his peril, take notice of the order of the court, without waiting to be served with a copy of the order (Wellink v. Renwick, 22 Wend. 608). And if the party neglect to pay the costs on demand, the other party may proceed as if no such order had been made (Pugsley v. Van Allen, 8 Johns. 272). But where an order requires an act to be done, and costs to be paid, the payment of costs is not a condition precedent to the doing the act (Sturtevant v. Fairman, 4 Sand. 647; Rule 23; and see Ford v. David, 1 Bosw. 569). And where a party is relieved against a regular order on certain specified terms, it is the duty of the party applying for such relief to draw up and enter the order granting the same, without unreasonable delay, and if he neglects to do so, the adverse party, upon filing an affidavit showing such neglect, and that the terms on which relief was to be granted have not been complied with, may proceed to carry into effect the original order, without entering an order upon the application for relief against it (Hoffman v. Tredwell, 5 Paige, 82). When a party obtains an order to be relieved on terms against a regular order, he must seek out the attorneys of the adverse party, and perform, or offer to perform, such terms, or he will lose the benefit of the order (id.)
RULE 58.-Order to stay, with view to change venue. Revoking stay. Notice of revocation.
No order to stay proceedings for the purpose of moving to change the place of trial shall be granted unless it shall appear, from the papers, that the defendant has used due diligence in preparing the motion for the earliest practicable day after issue joined. Such order shall not stay the plaintiff from taking any step, except subpoenaing witnesses for the trial, without a special clause to that effect. On presenting to and filing with the officer granting the order an affidavit, showing such facts as will entitle the