State, is not sufficient to authorize the exclusion of a deposition of such person taken de bene esse. Ib.

The party offering the deposition in evidence, cannot rely merely upon the presumption of the inability of the witness to attend the trial, arising from his advanced age. 3 Wend., 180. And, in case of the absence of a witness, the party offering his deposition in evidence must prove that he has used due diligence to procure the attendance of the witness, and that he has made inquiries at his last place of abode, in order to have him subpoenaed. 4 Wash. C. C. Rep., 219.

The preliminary proof may be made by affidavit, unless the proof is objected to specifically on the ground that it is by affidavit, and viva voce testimony insisted on. 7 Cow., 59. The preliminary proof may be made by a party to the suit. Ib.

The deposition of a foreign witness, taken de bene esse, may be read, though it appear that he came into this State on the request of the party, for the purpose of being examined, and that he is at home in a foreign country, and might have been examined on a commission, and even though a commission may have been obtained for the purpose of examining him at his foreign residence. 7 Cow., 69.

The opposite party may prevent the reading of the deposition, by satisfactory proof that sufficient notice was not given him to enable him to attend the examination of the witness, or that the examination was not, in all respects, fair, and conducted according to the statute. But he cannot object that the notice was too short, where he appears before the officer, and omits there to object for that reason. Cow., 59.

7

The reading of the deposition may be prevented by proof that the witness's attendance might, with due diligence, be obtained. 8 Barb. S. C. R., 530.

The deposition thus taken de bene esse, is to have the same effect, and no other, as the oral testimony of the witness would have, if given on the trial, or assessment; and every objection to the competency or credibility of the witness, and to the competency or relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if the witness were personally examined on the trial

or assessment.

CHAPTER VIII.

Motions* and Orders.

SECTION 400. 401.

Definition of an order.

402.

Definition of a motion. Motions, how and where made.

When notice is necessary, it must be eight days before hearing.

403. In actions in supreme court, county judge may act at chambers. His

orders, how reviewed.

404. In absence of judge at chambers, motion may be transferred by him
to another judge.

405. Enlarging time for proceedings in an action.

$ 400. [357.] Definition of an Order.-Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.

The distinction between "an order" and "a motion," is this. An order is the decision of a motion, a judgment is the decision of a trial. By the court, Parker, Watson, and Wright, JJ., in Bentley v. Jones, 3 Code Rep., 37; King v. Stafford, 5 Pr. R., 30. The words, "rule and order," in no case mean a "judgment." The

A proceeding by motion is summary and in derogation of the common law, and can never be indulged unless it be authorized by the express letter, or manifest intention, of some statutory enactment. Tift v. Virden, 7 Sme. & M., 93.

word, "order," is made to exclude the idea of a "judgment." It means the written direction of a court or judge, other than a judgment, and not included in it. Darrow v. Miller, 3 Code Rep., 241.

In Baldwin v. The City of Brooklyn (not reported), Edmonds, J., said,-

"Although the language of section 400 is very broad, it is very evident that every application for an order is not a motion within the meaning of that section; for if it were so, the expression that certain orders may be made by a judge anywhere in the State, would be nugatory.

"I must, therefore, hold that there are certain orders which are not motions, and thus restrict the general application of the language of the 400th section.

"But the question is, what orders are not motions? Evidently those which are made out of the court and without notice.

"When an application for an order is made in court, with or without notice, or when it is made out of court, upon notice given, it becomes a motion under this provision of the code.

"This does not mean a mere notice of comity, but where it is required by the practice, either under the code, the rules, or general practice of the court."

And where in an action triable in the second judicial district, an order was made by a judge at chambers in the first judicial district, for the defendants to show cause why an injunction should not issue, it was held, that although such judge might have granted the injunction ex parte, yet he had no power to grant an order to show cause why the injunction should not issue. 1b.

The "warrant of attachment," signed by the judge, or his allowance endorsed thereon, is clearly a "direction in writing," within the above definition of an order. Per Shankland, J., in Conklin v. Dutcher, 1 Code Rep. N. S., 49. Contra, per Edmonds, J., in Morgan v. Avery, 2 Code Rep., 91.

It seems the distinctions between orders and non-enumerated motions, are abolished in suits commenced since the code took effect. Low v. Cheney, 1 Code Rep., 29-39.

Where an order is granted on a condition, the condition must be performed within twenty-four hours, unless otherwise expressed in the order. Sabin 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. Pugsley v. Van Allen, 18 Johns. R., 352. 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. Willink 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, 18 Johns. R., 352.

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. 4 Sand. S. C. R., 647. After an order of the court in a cause, a further order of a judge at chambers on the same subject is irregular. Stansbury v. Durell, 1 Johns. C., 396. See supreme court rules 27, 28, 38, 83.

§ 401. [358 to 362.] (Amended 1849-1852.) Definition of a motion. Motions how and where made.--An application for an order is a motion

Motions may be made in the first judicial district, to a judge or justice out of court, except for a new trial on the merits.

Motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, except that where the action is triable in the first judicial district, the motion must be made therein, and no motion can be made in the first district in an action triable elsewhere. Or

ders made out of court, without notice, may be made by any judge of the court, in any part of the State; and they may also be made by a county judge of the county where the action is triable, except to stay proceedings after a verdict.

No order to stay proceedings for a longer time than twenty days, shall be granted by a judge out of court, except upon previous notice to the adverse party.

The amendment of 1852 is the insertion of the wodrs printed in italic.

This section is a revision and substitute for section 51, in the judiciary act of 1847. It extends the territorial limits within which a motion may be made, so as to embrace the entire district in which the action is triable. And it is plain that such extension was the only object of the revision. Gould v. Chapin, 4 Pr. R., 185.

The county in which an action is triable, is the county in which the venue is laid; that is, the county named as the place of trial in the complaint. Ib.

The reasonable construction to be given to the phrase," the county where the action is triable," includes any county in which, according to sections 123, 124, and 125, the plaintiff is at liberty to have the action tried. Peebles v. Rogers, 5 Pr. R., 208.

The review of a decision of a single justice, by a re-hearing at general term, was held to be a "motion," within the definition of this section. Van Wyck v. Alliger, 1 Code Rep., 68. Would such have been the construction, if the review had been by appeal? Ib. See note to section 245.

In one case it was said, that the application for judgment, on failure to answer, under section 246, was not a motion, but was more in the nature of a trial, or assessment for damages. Anon., 1 Code Rep., 82. And the same was held of an applicacation for judgment under section 247. Jones v. Bentley, 3 Code Rep., 37; 4 Pr. R., 335. King v. Stafford, 5 ib., 30.

The application for judgment, when necessary, must be made in the county designated as the place of trial. Anon., 1 Code Rep, 82. Werner v. Kenney, ib., 96; 3 Pr. R., 323. And at special term. Ryan v. McCannell, 1 Code Rep., 93. An appeal, under section 349, is within the definition of a motion, in this section. Savage v. Darrow, 2 Code Rep., 57. The affidavits to support a motion must show, affirmtively, that the motion is made in the proper district or county. Dodge v. Rose, 1 Code Rep., 123. Schermerhorn v. Develin, ib., 13.

On motion for a commission to take testimony, an order taken by default is not a nullity because the motion papers do not disclose the name of the county in which the action is to be tried. If necessary to show the place of trial, it can only be to show that the motion is made in the proper county. Blackman v. Van Inwagen, 1 Code Rep. N. S., 80.

Where, after verdict for the plaintiff, the defendant's attorney obtained an order of a county judge for a stay of proceedings, to make a case, and the plaintiff disregarded the order, and entered judgment, on motion to set aside such judgment, the court said, the county judge had no power to stay proceedings after verdict. Traver v. Silvernail, 2 Code Rep., 96.

In the court of common pleas for the city and county of New York, on appeal from an order at special term dismissing a motion on the ground that the motion was not noticed for the first day of term, and that no sufficient reason for not noticing the motion was set forth in the motion papers, the court said, "The supreme court could not by rule abolish that section of the code (401) which allows motions in this district to be made out of court to a judge of the court. Their power only extended to making rules not inconsistent with the code. A rule requiring such motions to be made at term, and not to a judge out of court, would be inconsistent." Lakey v. Cogswell, 3 Code Rep., 116.

Under section 360 of the code of 1848, which is merged in this section, and which was in these words, "Motions may likewise be made to a judge or justice out of court, except for new trial on the merits," it was held, that the affidavits, &c., used on such a motion on notice must be filed with the clerk of the county where the venue is laid, or, in case the place of trial has been changed, in the county to which the other papers in the cause are transferred. Savage v. Relyea, 1 Code Rep., 42. And the

order or decision of the justice on such motion must be filed in like manner. Ib. It is the duty of the respective attorneys to file the papers used by them on such motion, and of the prevailing party to see that the order is entered conformably to such decision. Ib. But an order granted by a judge, ex parte, at chambers, need not be entered with the clerk. Ib

A motion in arrest of judgment cannot be made at chambers. Duel v. Agan, 1 Code Rep., 134.

This section (401) does not apply to suits existing at the time of the passage of the code, nor to a special statutory proceeding. In re Hick's Will, 5 Pr. R., 316; 2 Code Rep., 128.

In Lusk v. Lusk, 3 Code Rep., 113, the court, Gridley, J., said, "A new trial for the reason that the verdict is against evidence, is a motion for a new trial on the merits; and, by implication, that motion may be made at special term.

"I am of the opinion that a justice at a special term has the power to hear and decide a motion for a new trial on the ground that the verdict is against evidence."

The term "judge," used in this section, no doubt includes a justice of the supreme court, although the expression "judge or justice" is also used in the same chapter. Justice is the term used in the constitution (Art. 6). But "judge" and "justice" are used synonymously in the code. Lowe v. Cheney, 1 Code Rep, 29, 39. And see note to section 403.

An application to an officer out of court for time to plead, or for an order for a bill of particulars, was not, under the former practice, considered a “motion;" and as this section (section 358 of code 1848) is not applied to suits pending on the 1st of July, 1848, such applications are not now "motions" in actions commenced prior to the code's going into effect. Lowe v. Cheney, 1 Code Rep., 29, 39. And in actions commenced before the code went into effect, a justice of the supreme court at chambers, might, under the code of 1848, make au order extending the time to plead more than ten (now twenty) days, on an application without notice. Ib. It seems the distinction between orders and non-enumerated motions is abolished in suits commenced under the code. Ib.

The principle sought to be established in the preceding case, of Lusk v. Lusk, was upheld by Willard, J., in Graham v. Milliman, 4 Pr. R., 435.

The application for a new trial before the special term is a motion. Ib. Where a motion is noticed for a day out of an appointed term, it must be brought on on the day specified. And where the moving party does not appear on that day, he is not entitled to his motion by default on a subsequent day. Vernovy v. Tauney, 3 Pr. R, 360.

Section 16 of the judiciary act of December, 1847, did not with any clerk and made by a judge and not by the court. S. C. R.. 90.

affect orders not entered Clark v. Judson, Barb.

In Schenck v. McKie (3 Code Rep., 24; 4 Pr. R., 246), the plaintiff had given notice of motion before Willard, J., at chambers, on the 30th October to change the place of trial. After the service of such notice, and on the 10th of October, the defendant obtained an order of a county judge, staying all proceedings on the part of the plaintiff, until the decision of the said motion. This order was served on the plaintiff, but was disregarded by him. The court said: It is plain by section 401, et seq., of the code, that the judge had no jurisdiction of the motion at chambers, and consequently the order to stay proceedings for that purpose was void. It appeared on its face to be a nullity. An order was never a stay of proceedings unless accompanied with a notice of motion, but a notice of motion to be of any efficacy to uphold the order, must be to a court having jurisdiction of the matter. Again, the 47th (now 44th) rule allows the plaintiff to proceed to judgment unless the order specially directs otherwise. Peebles v. Rogers, 5 Pr. R., 208.

That part of this section which forbids the granting an order to stay proceedings for a longer period than twenty days, except upon previous notice to the adverse party, does not, in any case, apply to an order to enlarge the time to make a case or bill of exceptions. Thompson v. Blanchard, 1 Code Rep., 105. Huff v. Bennett, 2 ib., 139.

Such an order is not of itself a stay of proceedings. Ib. If it contain a clause staying the proceedings, that part of the order may be disregarded. Ib.

That part of this section restricting the order staying proceedings (sect. 362 of code of 1848) in suits commenced prior to July, 1848, is applicable only to nonenumerated motions. And an order to make a case, and a bill of exceptions, and

in the meantime staying proceedings, was never treated as a non-enumerated motion. It was invariably granted ex parte, and without an affidavit, as part of the chamber duties of the judge who tried the cause acting on his knowledge of what transpired on the trial. Thompson v. Blanchard, 1 Code Rep., 105.

An order extending the time to answer was held not to be a stay of proceedings within this section. Wilcock v. Curtis, 1 Code Rep., 96. Several orders each staying the proceedings for less than twenty days, but collectively more than twenty days, may be made. Langdon v. Wilkes, 1 Code Rep., N. S., 10.

No judge has the right arbitrarily to make an ex parte order staying proceedings in an action for a given period, or twenty days (s. 401). The stay should. always be, until the party obtaining it can make some other application for relief. Chubbuck v. Morrison, 6 Pr. R., 367.

Except in the city of New York, and with the exception of certain cases specified by law in which a motion may be made at chambers, motions must be made either at a general or special term. Bedell v. Powell, 3 Code Rep., 61–63.

A motion for a new trial and assessment of damages, under the general road law (Laws of 1847, c. 210), can only be made at a special term. In Re Fort Plain and Cooperstown Plank Road Co., Ex parte Ransom, 3 Code Rep., 148.

A party complaining of any proceeding in a cause, must embody all objections then existing in one motion; he cannot make a separate motion for each objection. Thus where a plaintiff moved to set aside a demurrer as irregular, and failing in that, moved to set aside the demurrer as frivolous, held, that the second motion could not be entertained. Desmond v. Wolf, 1 Code Rep., 49.

An application to the court to remove a mere technical difficulty by which other parties cannot be affected, may be made ex parte. Re Patterson, 4 Pr. R., 34.

Where a summons was served, stating that a complaint would be filed in the clerk's office of Oneida county, and no copy of the complaint having been served after a demand made thereof, the defendant moved at the Monroe circuit for judg ment in the nature of non pros., and it was held that the motion should have been made in the fifth district or a county adjoining thereto. Johnston v. Bryan, 1 Code Rep. N. S., 46.

The clause requiring motions to be made within the district" applies only to motions on notice. Peebles v. Rogers, 5 Pr. R., 208.

Actions triable in Erie county, require all motions in relation to them to be made in the 8th district, as there are no counties out of that district adjoining Erie. Ingleheart v. Johnson, 6 Pr. R., 80.

Therefore a motion noticed in Monroe to dissolve an injunction in an action triable in Erie, was held to be irregular. Ib.

"The defendant's counsel supposes the true reading of section 401, to be that the motion must be made in the district in which the action is triable or in a county adjoining that in which it is triable, or in a county adjoining such district. I think, however, the antecedent to the pronoun that in the passage in question is county,' and means the same as if the sentence had been "or in the county adjoining the county in which it is triable." per Wells, J., in Ingleheart v. Johnson,

supra.

If it is intended to take any objections to a motion of a merely technical character, they should be raised before the merits of the motion are gone into; otherwise they will be considered as waived. 3 Caines R., 405.

Unless costs are asked for in the notice of motion, an order taken by default giv ing costs will be irregular. Northrup v. Van Deusen, 3 Code Rep., 140.

It is irregular to grant affirmative relief to a party opposing a motion, upon matters appearing in the opposing papers, which the moving party has no opportunity to answer. Garcie v. Sheldon, 3 Barb. S. C. R., 232.

An opposing party is sometimes allowed to amend a defect in his proceedings, without being put to a motion on his part. But this is allowed only in cases where the court can see, from the nature of the case, that no valid objection can be made to the amendment in case a motion is specifically made for that purpose. ib.

Although a party making a motion is not ordinarily allowed to read affidavits in support of his motion copies of which have not been served, yet in cases where the affidavits read in opposing a motion introduce new matter which may operate as a surprise upon the moving party, he is sometimes allowed to have the motion stand over for the purpose of obtaining affidavits to contradict or explain the new matter