R 2219.Time and form of order.

The portion of the first sentence of subdivision (a) relating to provisional remedies is based upon the last sentence of CPA § 823; the remainder is new. The rest of subd (a) is derived from CPA § 127 and RCP 70. Section 127 defines all orders, including the final order in a special proceeding, but the latter is covered in article 4 dealing with special proceedings—where the final order has been converted into a judgment. Neither the former section nor this subdivision covers oral motions made to the court during a trial. Such motions “are not strictly applications for orders, and are determined by oral rulings of the trial court entered upon the stenographic record of the case.” Carmody, New York Practice 41 n. 3 (7th ed Forkosch 1956). Furthermore, an entry in the clerk’s minutes, without any subsequent preparation or signing of a formal order, has sometimes been held to be a sufficient compliance with § 127 and its forerunners. See Gerity v Seeger & Guernsey Co. 163 NY 119, 57 NE 290 (1900) (order referring case to referee to hear and determine); Howard v Robinson, 186 App Div 530, 174 NY Sup 330 (2d Dept 1919) (order granting new trial upon the judge’s minutes); Loper v Wading River Realty Co. 143 App Div 167, 127 NY Supp 1000 (2d Dept 1911) (order striking case from trial calendar); Gersman v Levy, 58 Misc 174, 108 NY Supp 1107 (Sup Ct, App T 1908) (order staying execution). To conform with the general approach in this article of abolishing the distinction between court and judge orders and its consequences, this subdivision requires that all orders be the same in form. Thus, the judge who makes the order or presides at the term where it is made is to sign his name and state the court of which he is a judge, including the county if he is a Supreme Court justice. The former distinctions in the use of the words “enter” and “filing” are unnecessary since all orders will be entered and filed under new rule 2220. The last sentence of this subdivision is based on the first paragraph of RCP rule 70. It applies only to motions made with supporting papers. See Howard v Robinson, 86 App Div 530, 533, 174 NY Supp 330, 331 (2d Dept 1919). The former rule derives from amendments made to § 767 of the Throop Code in 1911 and 1912 (NY Laws 1911, c. 368; NY Laws 1912, c. 66), designed to authorize the short form of order commonly in use today. See 1 Carmody-Wait, Cyclopedia of New York Practice 695 (1952). It authorizes a long form order indirectly by stating that “nothing herein contained shall prevent the court from making an order either originally or on an application for resettlement in more extended form.” This subdivision authorizes either a short or long form order by the phrase “in such detail as the judge deems proper.” Rule 70 expressly authorizes the practice of endorsing or appending a short form order to the motion papers; this is omitted as unnecessary by the new subdivision. Although RCP 70 is entitled “Form and resettlement of order,” the only reference to resettlement is in the phrase quoted above authorizing an order in more extended form. No reference to resettlement is made in the new subdivision; none is required for it is an inherent power of the court. See Robertson v Hay, 12 Misc 7, 33 NY Supp 31 (NY Com Pleas 1895).

The provision of subd (b) is based on the second paragraph of RCP 70. The second paragraph of rule 70 was added in 1935 on recommendation of the Judicial Council to cover a special problem of the Appellate Division. See 2 NY Jud Council Rep 16 (1936). It is made applicable to all appellate courts to include both the Court of Appeals and the appellate terms of the Supreme Court. This subdivision allows any judge of appellate court to sign order even though presiding judge is not absent or disabled, to avoid the possibility of questions about the authority of an associate judge to sign an order based on whether or not the presiding judge was under a disability.

In one of its supporting studies, appearing in the Third Preliminary Report, in discussing the form of order under the Civil Practice Act and the Rules of Civil Procedure, the Advisory Committee on Practice and Procedure says:

“The distinction between court and judge’s orders regarding place of making an entry have spawned differences in the form of orders. Thus, the word ‘enter’ appears at the end of a court order but not a judge’s order, and the recital part of a court order begins with the words ‘upon reading and filing’ the motion papers while a judge’s order omits the words ‘and filing’. Further, the caption of a judge’s order simply states the title of the action while a court order caption recites the term and part and the justice who is presiding. Also, although rule 70 expressly makes the form of signature immaterial, it is customary for the judge to sign his initials alone on a court order and his full name on a judge’s order.” See, Third Preliminary Report of the Advisory Committee on Practice and Procedure (Legislative Document (1959) No. 17) p. 583.

Later, in discussing the proposed form of order under the CPLR, the Advisory Committee says:

“Nor would there be any reason under the proposed rules to retain the present distinctions in form between court and judges’ orders. Since all orders would be entered, all could contain the word ‘enter’ at the end and the reference to ‘filing’ in the recital part; these are presently used only in court orders. The caption need only recite the title, the court and the judge who made the order, whether it is made during a term or not. The minor differences regarding the judge’s signature and the place where the date appears could be resolved either way . . .” See Third Preliminary Report of the Advisory Committee on Practice and Procedure (Legislative Document (1959) No. 17) p. 608.

Formerly § 2219, add, L 1962, ch 308, § 1; amd, L 1962, ch 318, § 7, eff Sept 1, 1963; L 1996, ch 38, § 1, eff Jan 1, 1997.