Mittenthal v. Rabinowitz — 60 A.D. 138

Majority

p. 138

Max Mittenthal, Appellant, v. Lazar P. Rabinowitz, Respondent.

Headnote

Special Term calendar — after a case thereon is rm/r'ked “reserved, generally” an objection cannot be made that it should not be on that calenda/)'—dismissed unless the right to equitable relief is established.

Where a cause has been regularly placed upon the Special Term calendar for trial, and has been thereafter marked “reserved generally,” the court cannot deny the plaintiff’s motion to restore it to the day calendar on the ground that it should not originally have been placed upon the Special Term calendar.

Semble, that unless the plaintiff succeeds in establishing his right to equitable relief, his complaint will be dismissed.

Appeal by the plaintiff, Max Mittenthal, 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 16th day of March, 1901, denying the plaintiff’s motion to restore the action to the Special Term calendar for trial after it had been marked “ reserved generally.”

A. H. Parkhurst, for the appellant.

David J. Wagner, for the respondent.

We think the motion should have been granted. The cause had been regularly placed upon the Special Term calendar for trial, and the fact that thereafter it was marked “ reserved generally ” did not prevent the plaintiff from having it restored to the day calendar for

p. 139

•trial, and the court could not, upon a motion for that purpose, refuse to restore it on the ground that it ought not originally to have been placed upon the Special Term, calendar.

Although the judgment demanded being for an accounting, yet as the facts alleged in the complaint do not establish that the plaintiff is entitled to equitable relief, the defendant is entitled as a matter of right to a jury trial. (Glenn v. Lancaster, 109 N. Y. 641 .) If the allegations of the complaint are true, then the plaintiff is not entitled to equitable relief, but having placed his cause upon the •Special Term calendar, and having demanded equitable relief, he can, if he insists, upon it, bring his cause to trial in that branch of the •court. He has that right.' But, unless he succeeds in establishing facts which entitle him to equitable relief, his complaint must be •dismissed, and it is difficult to perceive how he can possibly succeed, upon the allegations of his complaint, in obtaining relief of that •character. However, that question is not now before us. All that we now decide is that he is entitled to have his cause restored to that ■calendar if he insists upon it.

The order appealed from must be reversed, with ten dollars costs And disbursements, and the motion granted.

Present—Van Brunt, P. J., Patterson, Ingraham, McLaughlin and Hatch, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted.

Cases cited

Glenn v. Lancaster 109 N. Y. 641 N.Y. 1888-04-17 p. 139