Watson v. Phyfe — 18 Abb. N. Cas. 484

Majority

p. 484

WATSON v. PHYFE.

Headnote

[Affirming ante, p. 469.]

N. Y. Supreme Court, First Department;

General Term, May, 1887.

1. New trial after reversal on appeal; placing came on day calendar.] ■ Where a new trial has been ordered upon reversal of judgment by the general term, a party may move upon two days’ notice at ' • circuit to have the case placed on the day calendar for trial.

2. The same; restoring cause to general calendar.] If, pending the appeal, a new general calendar has been made up from which the case is omitted, the proper practice is to move at circuit to have the case restored to the general calendar in the place its original date entitled it to occupy ; and then to move to place the cause on the day calendar for trial.

3. The same ; notice of trial.] No new notice of trial is required in such case, as the cause has not been “disposed of” within the meaning of Code Civ. Pro. § 977.

4. The same ; motion, where to he made.] The motion to place a cause, triable at circuit, on the day calendar, is improperly made at special term or chambers, but the objection cannot be first raised on appeal.

Appeal from order of Special Term placing cause on day calendar.

p. 485

The facts appear in the report of the decision below (ante, p. 469).

G. M. Curtis, for the plaintiff, appellant.

G. JST, JBovee, Jr. (Arnoux, Sitoh & Woodford, attorneys), for the defendants, respondents.

In a case like the one at bar where there has been a reversal at the general term and a new trial has been ordered, if the case is upon the general calendar the party may move upon two days5 notice at the circuit to have the ease placed upon the day calendar for trial. If, pending the appeal, a new calendar has been made up and the case has been omitted from such new calendar, the party desiring to place the case upon the calendar may move at circuit to have the case restored to the general term in the place its original date entitled it to occupy ; aud may then make a motion upon two days’ notice to have the same put upon the day calendar for trial. No new notice of trial is necessary as the case has not been disposed of.

In the case at bar, the motion was improperly made at the special term or chambers, but as no such objection was taken upon the hearing of the motion it cannot be considered upon this appeal.

The order appealed from should be affirmed, with $10 costs and disbursements to abide the event.