and successfully passed all examinations in all the subjects required for said degree during such period of attendance, in each case specifying the subjects in which said applicant took and passed his examinations as aforesaid, which proof must be satisfactory to the Board of Examiners. Fifth. That the applicant has passed the Regents' examination, or its equivalent must be proved by the production of a certified copy of the Regents' certificate filed in the office of the clerk of the Court of Appeals, as hereinbefore provided. Sixth. When it satisfactorily appears that any diploma, affidavit, or certificate, required to be produced has been lost, or destroyed, without the fault of the applicant, or has been unjustly refused or withheld, or by the death or absence of the person or officer who should have made it, cannot be obtained, the Board of Law Examiners may accept such other proof of the requisite facts as they shall deem sufficient. Seventh. A law student whose clerkship, or attendance at a law school has already begun, as shown by the records of the Court of Appeals, or of any incorporated law school, or law school established in connection with any college or university, may, at his option, file or produce, instead of the proofs required by these rules, those required by the Rules of the Court of Appeals in force June 1, 1908. Eighth. The provisions of subdivision four of this rule, so far as applicable, shall apply to persons making proof of the time of study allowed at summer sessions of a law school. (Subd. added and in effect May 18, 1917.) RULE VIII Regulations concerning examinations. The examination held by such State Board of Examiners may be conducted by oral or written questions and answers, or partly oral and partly written, but shall be as nearly uniform in the knowledge and capacity which they shall require as is reasonably possible. Every applicant shall be given and required to pass a satisfactory examination in the canons of ethics adopted by the American Bar Association and by the New York State Bar Association. An applicant who has failed to pass one examination cannot again be examined until at least four months after such failure. The State Board of Law Examiners shall be paid as compensation, each, the sum of three thousand five hundred dollars per year, and, in addition, such further sum as the court may direct, and an annual sum not exceeding nine thousand dollars per year shall be allowed for necessary disbursements of the Board. Every applicant for examination shall pay to the examiners a fee of twenty-five dollars, which shall be applied upon the compensation and allowance above provided, and any surplus thereafter remaining shall be held by the treasurer of the State Board of Law Examiners and deposited in some bank, in good standing, in the city of Albany, to his credit and subject to his draft as such treasurer, when approved by the Chief Judge. (Am. May 15, 1917, April 21, 1921, April 28, 1922.) RULE IX Relief from excusable mistakes.-When the filing of a certificate, as required by these rules, has been omitted by excusable mistake or with out fault, the court may order such filing as of the proper date. RULE X Additional rules by the Appellate Division.The Justices of the Appellate Division in each department may adopt for their several and respective departments such additional special rules for ascertaining the moral and general fitness of applicants as to such Justices may seem proper. At a Court of Appeals, held April 17, 1913, amination of law students by the State Board an order was entered with respect to the exof Law Examiners, the material part of which is as follows: written answers given by rejected candidates It is ordered that the papers containing the their examinations for admission to pracupon tice as attorneys and counselors at law in the courts of this State, be preserved for a period of four weeks from the date of the announcement by the Board of the results of the examinations, when they may be destroyed, and that of the examination papers of successful candidates one in twenty sets thereof be preserved for the period of three years and filed in the office of the clerk of the court. The State Board of Law Examiners is in structed so to frame the questions propounded to candidates for admission to practice as to perBoard is instructed in that respect to formulate mit of a reasoned answer to a question. The questions, whether based upon decided cases or upon statutes, so as to ascertain the ability of principles and of statutory rules, and to explain the candidate to apply his knowledge of legal the method of their application by him, rather than to elicit answers the correctness of which will rest upon the candidate's power of memomeasured by the reasoning power shown, and rization. The marking of a candidate should be not wholly by mere correctness. ADMISSION TO THE BAR OF PERSONS WHO HAVE BEEN ENGAGED IN MILITARY SERVICE Ordered, that in all cases where after the law study, as provided by the Rules of this court applicant shall have commenced his period of relating to the admission of attorneys and counselors at law, he has engaged in the military or naval service of the United States of America, in connection with the defense and patrol of our Mexican border, because of his having been a member of the National Guard of the State of vice shall be included as a part of the period of New York, or otherwise, the time of such serstudy required by Rules VI and VII. Dated, Jan. 31, 1917. On application duly made therefor, it is Ordered, that in all cases of applicants for admission to the Bar, where it shall appear that the applicant is a graduate of a law school and holds a degree regularly conferred by such school, and it shall appear that such applicant has been engaged in the military or naval service of the United States of America, as a member of the national guard or of the naval militia of the State of New York, or by reason of voluntary enlistment, conscription or otherwise, or in service at a recognized government military training camp, or as a member of the naval reserve corps, or in the ambulance service of the allies in Europe, the time ordinarily required by the law school from which he has graduated and received his degree as aforesaid as a condition of graduation and the bestowal of such degree shall be credited to him, although it may appear that by reason of his engagement in the said military or naval service or in such training camp or ambulance service some of the time ordinarily required for graduation or for obtaining such degree has been waived by the law school granting the same. The time so credited for such service, however, shall not exceed one year, nor shall it exceed the time allowed by the school from which he graduated and received his degree; and Further ordered, that in all cases where, after an applicant for admission to the Bar shall have commenced his period of law study, either in a law school or law office, as provided by the rules of this court relating to admission of attorneys and counselors at law, it shall appear that such applicant has been engaged in the military or naval service of the United States of America, as a member of the national guard of the State of New York, or by reason of voluntary enlistment, conscription or otherwise, or in service at a recognized government military training camp or in the ambulance service in Europe, the time of such service, not exceeding one year, shall be included as part of the period of study provided for by Rules relating to the admission of attorneys and counselors at law. 1238 Nothing herein contained shall be construed as exempting an applicant for admission to the Bar from taking and passing the examinations as required by the rules of this court. (Dated, May 10, 1917. Am. Jan. 10, 1919.) * Amentched sie Law Journal RULES OF CIVIL PRACTICE 8 Jan 1983 Adopted by the Convention to Consider and Adopt Rules of Civil Practice June 17, 1921, Pursuant to Laws of 1920, Chapter 902, as amended, Laws 1921, Chapter 370. RULES OF CIVIL PRACTICE Title 1. Courts; miscellaneous provisions. (Rules 1-9.) 5. Payment into court. (Rules 30-34.) 35-37.) 7. Guardians ad litem and special guardians. 8. Summons and the service thereof. 45-53.) 9. Appearance. (Rules 55, 56.) 10. Motions. (Rules 60-67.) 11. Orders. (Rules 70-74.) 12. Arrest, injunction and attachment. 80-84.) 13. Extension of time. (Rules 85-88.) 14. Pleadings. (Rules 90-116.) 15. Depositions to be used within the state. 120-133.) appointed, and all applications for admission to the bar of persons residing within a district shall be referred to the committee for such district. Unless otherwise ordered by the court, no person shall be admitted to the bar without a certificate from the proper committee that it has carefully investigated the character and fitness of the applicant and that, in such respects, he is entitled to admission. Such committee shall have power to prescribe a form of written statement of the applicant's experience, from which the committee may pass on his moral (Rules and general fitness. If such applicant has before applied for admission to the bar in this or any other state, the applicant shall set forth the same with the particulars thereof. If his application has been rejected or disapproved by the committee on character of an appellate division, he shall obtain the consent of that appellate division to the renewal of his application in any other department. No person shall receive a certificate from any such committee who does not satisfy the committee that he believes in the form of, and is loyal to, the government of the United States. (Rules 16. Depositions to be used without the state. (Rules 136, 137.) 17. Perpetuation of testimony in real property actions. (Rule 138.) 18. Discovery and inspection. (Rules 140-142.) (Rules 150, 151.) 22. References. (Rules 170-173.) 23. Receivers. (Rules 175-180.) 24. Judgment. (Rules 185-204.) 25. Declaratory judgment. (Rules 210-214.) 26. New trial. (Rules 220-224.) 27. Appeals. (Rules 229-239.) 28. Action to recover real property. (Rules 240, 241.) 29. Action for dower. (Rule 243.) Courts; Miscellaneous Provisions Rule 1. Applications for admission as attorneys. 2. Courts may make further rules. 3. Provisions applicable to proceedings in surrogates' courts. 4. Oral agreement between parties or counsel. 5. County judge; when time begins to run if dis- 6. Compelling officer to return, deliver or file paper. 9. Term "proceeding " refers to special proceedings. Rule 1. Applications for admission as attorneys. Within the first ten days of each year the appellate division in each department shall name a committee of not less than three practicing lawyers for each judicial district within its department, which committee shall investigate the character and fitness of every applicant for admission to the bar. Each of such committees shall continue until its successor is Each applicant for admission must present to the court where he shall apply for admission proof that he has complied with the rules of the court of appeals relating to admission to the bar. No person shall be admitted until he has proven that he is a citizen of the United States and an actual resident of the state of New York for six months prior to the making of the application. He shall specify the place of his residence by street and number, if such there be, and the length of time he has been such resident. The clerk of the appellate division must file in his office all the papers presented and acted on by the court on each application for admission. Rule 2. Courts may make further rules.-The appellate division in each department and any other court of record may make such other, or further, rule for the conduct of business before it as it may deem necessary and which is not inconsistent with the following rules. Rule 3. Provisions applicable to proceedings in surrogates' courts.-Except where a contrary intent is expressed in, or plainly implied from, the context, a provision of rules applicable to practice or procedure in the supreme court applies to surrogates' courts and to the proceedings therein so far as they can be applied to the substance and subject matter of a proceeding without regard to its form. Rule 4. Oral agreement between parties or counsel.-An agreement between parties or their attorneys relating to any matter in an action or a proceeding shall not be binding unless in writing subscribed by the party, or by his attorney or counsel, or reduced by consent to the form of an order and entered. This rule shall not apply to oral stipulations between counsel made in open court. Rule 5. County judge; when time begins to run if disqualified. If a county judge be disqualified from acting in any case pending in the court of which he is the judge, the time within which any proceeding may be taken, as fixed by statute, or by rule, shall not begin to run until the certificate of his disqualification shall be given by him. Rule 6. Compelling officer to return, deliver or file paper. If any public officer fail to file any process or other paper which he is required by any provision of law or by any rule of court to file, any party in interest may serve on him a notice requiring him to file the same within three days, or to show cause at a special term of the supreme court at a time designated why an attachment should not issue against him. Rule 7. Books to be kept by clerks of courts. -The clerks of the courts shall keep the following books: A. The clerk of the appellate division in each department shall keep: 1. A book, properly indexed, in which shall be entered the title of all actions and proceedings which are pending in that court, and all actions or proceedings commenced in the appellate division, with entries under each, showing the proceedings taken therein and the final disposition thereof. 2. A minute book showing the proceedings of the court from day to day. 3. A book, properly indexed, in which shall be recorded at large all bonds or undertakings filed in his office, with a statement of the action or proceeding in which it is given, and a statement of any disposition or order made of or concerning it. 4. A book, properly indexed, which shall contain the names of each attorney admitted to practice, with the date of his admission, and a book, properly indexed, which shall contain the name of each person who has been refused admission or who has been disbarred, disciplined or censured by the court. The clerk of each department shall transmit to the clerk of the court of appeals and to the clerks of the other departments the names of all attorneys who have been admitted to practice, the names of all applicants who have been refused admission, and the names of all attorneys who have been disbarred, disciplined or censured by the court. The clerk of each department is directed to enter in the proper book the name of each attorney who has been admitted to practice, with date of his admission, and the name of each person who has been disbarred, refused admission, or has been disciplined or censured, with the date of such disbarment, refusal of admission, or discipline or censure, received from the other departments of the state, together with the date when and department wherein the order was made. B. The clerks of the other courts shall keep in their respective offices, in addition to the "judgment book" required to be kept by law: 5. A book, properly indexed, in which shall be entered the title of all civil actions and proceedings, with proper entries under each denoting the papers filed and the orders made and the steps taken therein, with the dates of the filing of the several papers in the action or proceeding. 6. A book in which shall be recorded at length each bond, or undertaking, of public officers, and of any officer appointed by the court, or by a judge, filed in his office, except bonds of receivers appointed in proceedings supplementary to execution, with a statement showing when such bond or undertaking was filed and a notation on the margin of the record showing any disposition, or order, made of or concerning it. be necessary, or convenient, to contain the min7. Such other books, properly indexed, as may utes of the court, the docket of judgments, the entry of orders, and all other necessary matters and proceedings. 8. Such other books as the appellate division in each department may direct to be kept. Rule 8. Notice to present claims.-Where an action is brought for the collective benefit of creditors or for the benefit of a person other than the plaintiff who will come in and contribute to the expense of the action, notice requiring the creditors or others interested to exhibit their demands or become parties shall be given or published as the court may order. Rule 9. Term "proceeding" refers to special proceedings.-When the word "proceeding" is used in these rules it will be taken to refer to all matters which are defined as "special proceedings" in section five of the civil practice act. TITLE 2 Papers and the Filing Thereof Rule 10. Legibility and size of papers. 11. Subscription and indorsement by attorney. 13. Subscription and indorsement of writs and other process. 14. Lost or withheld papers. 15. Filing papers generally. 16. Special rules for indorsing and filing papers. Rule 10. Legibility and size of papers.—All papers served or required to be filed shall be written, typewritten or printed plainly and legibly, in black ink, in the English language, on durable white paper of good quality and, except exhibits, of the usual legal cap size; but legible, reproduced copies may be served. The proper and known names of process and technical words may be used. Such abbreviations as are in common use in the English language may be used. Numbers may be expressed in arabic figures or roman numerals in the customary manner. If papers be not so written or printed, the clerk shall not file the same, nor will the court or a judge hear any application thereon. Rule 11. Subscription and indorsement by attorney. All papers issued by an attorney shall be subscribed with his name. All papers served or filed in any action or proceeding shall have the name of the attorney indorsed thereon if the party appears by attorney, and if he does not appear by attorney, then the name of the party serving or filing the paper together with the address of the attorney or party as the case requires with sufficient detail for counter-service. Rule 12. Waiver of objection to requirements. -The party on whom a paper is served shall be deemed to have waived non-compliance with rules ten and eleven, unless within twenty-four hours after the receipt thereof he returns the paper with a statement of the particular objection to its receipt. Such waiver shall not apply to papers required to be filed or delivered to the court. Rule 13. Subscription and indorsement of writs and other process. A writ or other process issued out of a court of record must be subscribed or indorsed with the name of the officer by whom, or by whose direction, it was granted, or the attorney for the party, or the person at whose instance it was issued, before the delivery thereof to an officer of the court to be executed. Rule 14. Lost or withheld papers.—If an original pleading or paper be lost, or withheld by any person, the court may authorize a copy to be filed and used instead of the original. Rule 15. Filing papers generally.-In causes pending in the appellate division, all papers required to be filed in that court shall be filed with the clerk thereof in the department in which the appeal is pending. In all other cases, where no provision is made by the civil practice act or by these rules, papers in the supreme court shall be ified in the summons as the place of trial. Exfiled in the office of the clerk of the county speccept as otherwise provided by law, in other courts of record, papers shall be filed in the office of the respective clerks thereof. In case the place of trial be changed to another county from that where the venue is originally laid, all papers shall be filed in the county to which such change is made. Rule 16. Special rules for indorsing and filing papers.-The appellate division in each department may make special rules for the indorse ment to be placed on papers served or filed in an action or proceeding in the supreme court within the department of such appellate division or in any county therein, and for the filing thereof, and may require the use of flat files. TITLE 3 Service of Papers Rule 20. Mode of service of papers generally. 21. Manner of service of papers to begin a proceeding. Rule 20. Mode of service of papers generally. -A notice or other paper in an action (other than a summons or other process, a paper to bring a party into contempt, or where the mode of service is specially prescribed by law) may be served on a party or an attorney either by delivering it to him personally or in the manner following: 1. On a party or an attorney, through the postoffice, by depositing the paper properly in closed in a postpaid wrapper in a postoffice or inany postoffice box regularly maintained by the government of the United States in the city, village or town of the party or the attorney serving it, directed to the person to be served at the address within the state theretofore designated by him for that purpose; or, if such a designation has not been made, at his place of resi dence or the place where he keeps an office, according to the best information which can be conveniently obtained. 2. On an attorney at his office, by leaving the paper with his partner or clerk therein or with a person having charge thereof; if there be no person in charge of his office and the service be made between six o'clock in the morning and nine o'clock in the evening, by leaving it in a conspicuous place in his office. 3. On an attorney, if his office be not open, by depositing it, inclosed in a sealed wrapper directed to him, in his office letter-drop or -box, accessible from without his office, or by leaving the paper at his residence within the state with person of suitable age and discretion. 4. On an attorney, if his office be not open and there be no office letter-drop or -box and no person of suitable age and discretion at his resiit with the clerk of the court in which the action dence on whom service can be made, by leaving or proceeding is pending. If, under the rules, a paper may be served at the residence of an attorney living in the state, service may be made on an attorney practicing in the state but rein a post-office or in any postoffice box regularly siding outside thereof, by depositing the paper maintained by the government of the United States in the city, village or town where his office is located properly inclosed in a postpaid lent to personal service on him. wrapper directed to him at his office. A service made as provided in this subdivision is equiva residence within the state, between six o'clock 5. On a party by leaving the paper at his in the morning and nine o'clock in the evening, with a person of suitable age and discretion; where a party who has appeared in person resides without the state or his residence cannot be ascertained with reasonable diligence, and he has not designated an address within the state on the preceding papers, service of a paper on him may be made by serving it on the clerk of the court. Rule 21. Manner of service of papers to begin and rules relating to the mode of personal serva proceeding. The provisions of the statutes ice of a summons shall apply to the service of any process or other paper whereby a proceeding is begun in a court, or before an officer, except a proceeding to punish for contempt, unless other special provision for the service thereof is made by law or rule. Other papers in a proceeding shall be served in like manner as in an action. TITLE 4 Security Rule 25. Form and requisites of bond or undertaking. 26. Failure to file required bond or undertaking. 27. Attorneys not to be sureties or bail. Rule 25. Form and requisites of bond or undertaking. The following provisions regulate the form and requisites of a bond or undertaking in an action or proceeding, unless otherwise provided by statute or rule: 1. The principal need not join with the sureties in its execution; 2. The execution by one surety is sufficient, although the word "sureties" is used in the statute or rules; 3. It must be joint and several in form where two or more persons execute it; |