Majority
p. 532The People of the State of New York ex rel. Charles Rockland Tyng, Appellant, v. Thomas L. Feitner and Others, Composing the Board of Taxes and Assessments in the City of New York, Respondents.
Headnote
Special proceeding—issues entitled to a preference upon the special calendar of Part 2 of the Nm Yorh Trial Term—how noticed, for trial.To entitle issues in a special proceeding, which are to be tried by a jury, to be placed upon the special calendar in Part 2 of the Hew York Trial Term, under rule 3 of the Rules for the Regulation of Trial Terms in the first judicial district, it is not necessary to claim a preference in the notice of trial, or to serve with such notice a notice of motion for a preference.
Appeal oy the relator, Charles Rockland Tyng, from an order of the Supreme Court, made at the New York Trial Term, bearing date the 20th day of February, 1899, as amended by an order bearing date the 21st day of February, 1899, and entered in the office of the clerk of the county of New York, denying the plaintiff’s motion to place the case upon the preferred calendar.
Richmond Weed, for the appellant.
Terence Farley, for the respondents.
We think this application should have been granted. The motion was not made for a preference under the Code of Civil Procedure, but under rule 3 of the Rules for the Regulation of the Trial Terms of the Supreme Court in the first judicial district. By that rule it is provided that upon this special calendar to be called in Part 2 of the
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Trial Term, are to be placed all cases entitled to a preference under the Code; and also that there shall be placed upon this calendar for trial all issues and special proceedings to be tried by a jury, and any issue in an equity action as to which the parties are entitled by law to a jury trial where such issues have been framed to be so tried. To entitle the issues in a special proceeding to be tried by a jury, to be placed upon this calendar for trial, it is not necessary to claim a preference in the notice of trial or to serve a notice of motion for a preference with the notice of trial! Issues in a special proceeding to be tried by a jury are to be placed upon this calendar; not because such issues are entitled to a preference by the Code, but because the rule makes such a provision for the trial of such issues. In such a proceeding a party may make an application for an order placing the issues upon this calendar for trial at any time after the service of a notice of trial and placing the cause upon the calendar.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted.
Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.