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Huntington v. Title Guarantee & Trust Co.

96 A.D. 168 Court N.Y. App. Div. English

Delivered by Van Brunt, P. J.:

Contents

Majority

p. 168
George H. Huntington, Plaintiff, v. Title Guarantee and Trust Company and City Real Estate Company, Respondents. Annie F. Dieter, Impleaded in Place of George H. Huntington, Appellant.

Headnote

Postponement of a motion—an attorney having a case on the Appellate Division calendar is entitled thereto.
Where, on the return day of a motion, it appears that the counsel for the opposing party has the third case upon the "day calendar of the Appellate Division in the first department, he is entitled, under the rules of such Appellate Division,, to a postponement of the hearing of the motion.
Appeal by Annie F. Dieter, impleaded in place of George H. Huntington, from ah order of the Supreme Court, made at the New
p. 169
York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of April, 1904, reviving and continuing the above-entitled action in the name of the appellant as plaintiff.
Henry J. McCormick, for the appellant.
William B. Ewing, for the respondent.

It appears from the record in this case that this motion was brought before the court upon an order to show cause which was served only the day before the return day, although it appears to have been granted two days prior to such service. Upon the return day the motion appeared as Ho. 46 on the motion calendar of the Special Term. On the same day the counsel for the appellant herein had a case upon the. calendar of the Appellate Division, which stood Ho. 3 thereon. Application was made to the court at Special Term for a postponement of the motion, as the counsel was actually engaged in the Appellate Division. This application was denied, and the motion was thereupon granted by the court.

We think, under the rules of the Appellate Division, the appellant had a right to a postponement, and the denial thereof was error.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term for hearing.

Patterson, O’Brien, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion remitted to Special Term for hearing.