p. 125Alexander Finelite, as Receiver, etc., of Julia Dorian, Respondent, v. Julia Dorian, Appellant, Impleaded with Others.Headnote
Practice in the first judicial district where a case has been transferred, by the new Constitution from the Superior to the Supreme Court — motion to add it to the calendar as left off by mistake, or filing note of issue and service of notice of trial.Where an action, originally begun in the Superior Court of the city of New York,, is transferred to the Supreme Court, under section 5 of article 6 of the Constitution of 1894, it is necessary for the plaintiff, desiring a trial, to comply with, rule 8 of the Appellate Division and file a note of issue with the clerk of part 3-of the Special Term in the first judicial district at least twenty days before the-. first Monday of January, 1896.
Where a plaintiff fails to do this he may still apply, under the fule and according to its terms, to have the case put upon the calendar as having “been left off by mistake,” or he may serve a notice of trial and file a note of issue for a. particular term, but where he has simply filed such a note of issue, and not noticed the case for trial, it will be stricken from the calendar.
Appeal by the defendant, Julia Dorian, from an order of the-Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1896,' denying her motion to strike this action from the Special Term calendar.
George Put/nam Smith, for the appellant.
P. G. Tabnan, for the respondent.
This action was originally in the Superior Court of the city of New York. Upon the abolition of that court, it was, under the provisions of the Constitution, transferred to the Supreme Court for hearing and determination. (Const, art. 6, § 5.) To secure that-hearing and determination in an orderly and proper manner, the plaintiff was required by rule 8 of the rules for the regulation of the Special Terms in the first judicial district (adopted by this-Appellate Division on the 25th day of November, 1895) to file a-note of issue with the clerk of part 3 of the Special Term at least twenty days before the first Monday of January, 1896. This rule-provided that no case should be placed upon the Special Term cal
p. 126endar which was then directed to be made up, unless such note of issue were so filed. The plaintiff apparently neglected to comply with this rule., At all events, his action was not placed upon that calendar, and he does not pretend that he filed the required note of issue. He was not remediless, however. The rule made further provision for just such a case. That further provision was that a motion to add to the calendar in question “ any cases
which ham been left off by mistake, may be made : to the court at part 3 of the Special Term on the first Monday of each term on two days’ notice to the adverse party.” This rule was applicable even though the mistake were that of the clerk. The plaintiff did not avail himself of this permission, but simply filed a note of issue for the October ^.Special Term of 1896. This would have been well enough if he Fad served a notice of trial for that October Term. But he did not do so. He was, therefore, irregular in either aspect of the practice. If he desired to correct the calendar made up for January, 1896, by Faving his cause added thereto, he-should have moved as indicated in the rule. If, however, he simply wished to have his cause placed upon the general calendar of the Special Term independently, he should have served his notice of trial for the term for which he filed his note of issue.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion to strike the cause from the Special Term calendar granted, with ten dollars costs.
Yan Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., ■concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.