Majority
p. 1118HALVORSEN v. INTERSTATE LIGHTERAGE & TRANSPORTATION CO. (Supreme Court, Appellate Division, Second Department. July 27, 1911.)
Headnote
' Appeal from Trial Term. Action by Harry E. Halvorsen against the Interstate Lighterage & Transportation Company. From an order ¡denying motion to restore case to day calendar, plaintiff appeals. Reversed. The following is the opinion of Kelly, J., at Trial Term: “The case was answered ‘Ready’ on the call calendar, but when reached on the
p. 1119
day calendar was answered ‘Off,’ without explanation or reason given, or request made that the case be again put upon the calendar, blocking the way of litigants who are ready and desire to try their cases. It was therefore marked for October, or, what is equivalent, to the foot of the calendar. Plaintiff now wishes to restore it to the day calendar. I can see no reason for so restoring it. If parties do not wish to try their cases, although they have answered them ‘Ready’ on the call calendar, then it is not too much to ask that they comply with the rule and file a stipulation before the case appears on the day calendar. Motion denied.’’
Adolph Ruger, for appellant.
Nadal, Jones & Mowton, for respondent.
Order reversed, without costs, on the ground that the appellant was within the provision of the general rules of practice, and clerk directed to restore cause to the calendar.
HIRSCHBERG, J., dissents, and votes to dismiss the appeal on the opinion of Kelly, J., at the Trial Term.