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Watson v. Phyfe

18 Abb. N. Cas. 469 Court N. Y. Supreme Court, First District, Chambers ; English

Delivered by Andrews, J.

Contents

Majority

p. 469
WATSON v. PHYFE.
N. Y. Supreme Court, First District, Chambers ;
March, 1887.

Headnote

1. New trial; after reversal on appeal, placing cause on calendar.] Where a judgment has been reversed and new trial ordered, either party has an absolute right to have the case placed upon the day calendar for trial.[1]
p. 470
2. Whether cause remains on calendar.] Where a new trial is ordered by the appellate court, the cause cannot be deemed disposed of, within section 977 of the Code of Civil Procedure, by which an action in the first district once noticed for trial, is to “ remain on the calendar until disposed of.’’
Motion by the defendant to advance cause upon the day calendar, and have it set down for a particular day for trial.
The cause had been once tried, and judgment rendered for defendant, which, upon appeal, had been reversed, and a new trial ordered. Defendants had then filed a new note of issue, and re-noticed the cause for trial.
Upon the defendant’s application to the clerk of the court to advance the canse upon the calendar by reason of the priority of its date of issue, he had declined to do so.
■ A prior motion to advance the cause on the calendar had been denied, upon the ground of an irregularity in the entry of the order upon the general term decision. on the appeal.
The affidavit for the motion showed these facts, and alleged that causes of much later date of issue were daily being tried.
C. N. Bovee, Jr. {Arnoux, JRitch & Woodford, attorneys), for the defendants, and the motion.
G. M. Curtis, for the plaintiff, opposed.
This cause is not entitled to any preference by reason of the fact that it has once been tried, and there is no sufficient reason shown (Bank of Attica v. Metropolitan Natl. Bank, 91 N. Y. 239 ; Mayor v. Broadway, &c. R. R. Co., 12 Hun, 571 ). Although every judge has control of his own calendar, the cases in which it would be proper in his discretion to advance a cause, are specifically set forth' in the statutes and reported cases. It is only in very extreme cases, such as those involving arrest (Philadelphia Steamship Dock Co. v. Lorillard Steamship Co., 54 How. Pr. 508 ; Peyser v.
p. 471
Wendt, 84 N. Y. 642 ; Smith v. Keepers, 5 Civ. Pro. R. [Browne] 66 ; Bartlett v. Musliner, 92 N. Y. 646 , preference refused in action for dower). Courts will exercise their discretion in preferring, only when, but for some want of formality, the case was entitled to preference under the statute (Smith v. Keepers, above).

Plaintiff’s counsel is mistaken in supposing that the court has any discretion in regard to granting or denying this motion. The action has been once tried, and upon such trial the complaint was dismissed. On appeal, the decision of the court below was reversed, and -a new trial ordered. The defendant desires that a re-trial should be speedily had, but the plaintiff wishes the new trial postponed.

It is perfectly well settled that in a case like this, either party has a, right to have the case placed on the day calendar for trial. It is not a question of whether the action shall have a preference, which is addressed to the discretion of the court, but a matter of absolute right. There has been some difference of opinion in regard to the status of an action which has been once tried, and where, on appeal, a new trial has been ordered. Section 977 of , the Code provides that in this district an action once noticed for trial shall remain on the calendar until it has been disposed of. Whether an action which has been tried has been disposed of, depends upon whether an appeal is taken, and upon the disposition of such appeal which is made by the general term. If a new trial is ordered, the case cannot be said to have been disposed of. In cases of this character, it is considered by some of the judges that the action is to be regarded as holding the same position as though it had been marked generally reserved, and that either party has a right to have it put on the day calendar on two days’ notice. It is thought by others that in cases of this character the action must, in this district as well .as in others, be re-noticed for. trial, and á new note of issue filed with the clerk. ■ -So

p. 472
far as I am aware, however, it has always boon held that in cases of this description cither party has a right to have the case placed on the day calendar. An order must, therefore, be entered directing the clerk to place this action on the day calendar.

The order will be settled on notice.[1]

* The order entered upon this decision merely directed the clerk to " place the above entitled action upon the day calendar.”

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