Gregory v. Cryder — 9 Abb. Pr. 89

Majority

p. 89

GREGORY against CRYDER.

Court of Appeals;

October Term, 1870.

Headnote

Calendar Practice.

An appeal from an order made on a non-enumerated motion must be placed on the calendar in this court; otherwise the court will not, even by consent of counsel, hear oral argumentthough it may, upon good cause shown, allow the appeal to be submitted on the points.

Appeal from an order.

This was an.action on contract for the, recovery of money only.

The plaintiff having obtained a report by the referee to whom the cause was referred for trial, awarding judgment in his' favor, defendant moved to set aside

p. 90

the report, on the ground that the statute time within" which the report must be made, had elapsed. The motion was denied, and the plaintiffs entered judgment. Defendants took an appeal from this order, and served notice of hearing upon'the plaintiff, without, however, placing the cause upon the calendar.

Mr. Peckham, for the appellants.

Mr. Rice, for the respondents.

It being conceded that this cause is not upon the calendar, we cannot hear it. The rule of court, made some years ago, requires that appeals in non-enumerated motions, as well as others, should be placed upon the calendar; and that rule is still in force.

Pice, for the respondent, suggested that counsel had come from Hew York in anticipation of arguing the appeal, and were ready to waive any objection if they could allowed to do so.

The Chief Justice (after consultation).—The rule precludes an argument of the cause; but under the circumstances of this case, we are disposed to allow it to be submitted upon the points without oral argument, if that be desired.

Counsel not agreeing on a submission, the cause went over.^[1]

* By a subsequent amendment of the calendar rule, appeals under subdivision 4 of section 11 of the Code, which are entitled to a preference, will be placed in a preferred class on the calendar of 1871.