Definition
A nonenumerated motion is a category of motion in New York practice that addresses procedural irregularities in a pending action, as distinguished from enumerated motions, which raise substantive or merits-based issues. The classification determines how and when the motion is heard and what arguments may properly be raised in connection with it.
Under the historical New York scheme, motions were sorted into two formal classes: enumerated and nonenumerated. Nonenumerated motions were those limited in scope to procedural defects or irregularities — matters of process rather than substance. Because they were limited in this way, they were governed by different scheduling rules and heard on a different calendar than enumerated motions.
The defining characteristic of a nonenumerated motion is its restriction to irregularity. If a party sought to introduce arguments going to the merits of the underlying action alongside a procedural challenge, the motion lost its nonenumerated character and was reclassified as enumerated. The classification was not elective; it followed from the nature of the relief sought.
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Common Confusion
The terms "enumerated" and "nonenumerated" are easily transposed, and their relationship to substantive versus procedural content is counterintuitive. One might expect a more elaborate or formally catalogued class of motions to be the "enumerated" variety — and indeed it is: enumerated motions are those specifically listed in court rules as raising identified substantive issues, and they typically proceed on a heavier or more structured calendar. Nonenumerated motions, despite the prefix suggesting something lesser or residual, are not catch-all motions; they are a defined procedural category with their own scope restrictions. The key error to avoid in reading historical New York sources is assuming that "nonenumerated" simply means "unlisted" in the sense of informal or miscellaneous.
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Why It Matters in Research
This term is almost entirely a creature of historical New York practice and appears primarily in pre-twentieth-century New York procedural materials, reports, and encyclopedias. Researchers will encounter it most often in early New York case law, treatises on New York pleading and practice, and in Bouvier's, which flags the classification but does not fully develop it.
The practical research trap is jurisdictional anachronism: the enumerated/nonenumerated distinction was a feature of New York's procedural system under the old calendar rules and is not a general term of art in American procedure. It does not translate into federal practice or the procedural frameworks of most other states. Importing the concept into a non-New York or post-reform context will produce analytical error.
The scope restriction is the critical substantive point for historical researchers: a nonenumerated motion was fatally compromised if merits arguments were grafted onto it. This had real strategic consequences in nineteenth-century New York litigation. A party who mixed a procedural objection with a merits argument inadvertently converted the motion to enumerated status, triggering different procedural consequences. Researchers reading historical New York opinions should watch for this conversion issue when analyzing motion practice disputes.
The term will not appear in modern New York CPLR practice under this label. The current New York motion practice framework, governed by the CPLR and Uniform Civil Rules, does not use the enumerated/nonenumerated vocabulary, though functional distinctions between procedural and substantive motions persist in other forms. Researchers tracing continuity between historical and modern New York practice should not assume the category maps cleanly onto any current rule.
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Historical Dictionary Support
Bouvier's Law Dictionary identifies the enumerated/nonenumerated distinction as specific to New York and cites early New York caselaw (1 Cai. (N.Y.) 22) for the proposition that a nonenumerated motion for irregularity cannot reach the merits. Bouvier's also cross-references the American and English Encyclopedia of Law (21 A. & E. Encyc., 2nd ed., 545) for further treatment. The Bouvier entry is brief and descriptive rather than analytical — it flags the classification and its consequence without elaborating the underlying rationale or the full range of motions that qualified as nonenumerated.
What Bouvier's does not supply is a complete list of which specific motions fell into which class, the procedural calendar rules that attached to each class, or the history of how the distinction developed. Researchers needing that level of detail must go beyond the dictionary to New York-specific practice treatises of the period and to the rules of the New York Supreme Court as they existed before the CPLR era.
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Jurisdictional Note
This term is specific to historical New York practice. It does not appear as a term of art in federal civil procedure, in the CPLR, or in the procedural codes of other states. Researchers working in any jurisdiction other than historical New York should treat this as a locally bounded concept and not attempt to apply it elsewhere.
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Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia: Pretrial Motions — Motion to Dismiss; Pretrial Motions — Motion to Suppress Evidence. These entries address the modern motion practice landscape into which historical procedural classifications like the enumerated/nonenumerated distinction did not carry forward, and provide useful contrast for researchers tracing the evolution of motion practice.
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