Wasserman v. Pfizer — 136 N.Y.S. 203

Majority

p. 203

WASSERMAN et al. v. PFIZER.

(Supreme Court, Appellate Division, First Department.

June 28, 1912.)

Headnote

Trial (§ 13*)—Trial Calendar.

In an action upon promissory notes, neither the fact that a defense was interposed, seeking equitable relief, nor the fact that defendant had previously commenced an action against the plaintiffs, barred the plaintiffs’ right to have the action placed on the special calendar, under rule 5, § 2, for the regulation of Trial Terms; but, if the defendant desired a separate trial of his equitable rights, his remedy was under Code Civ. Proe. § 987, providing when the court may change the place of trial.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 32Dec. Dig. § 13.*]

Appeal from Trial Term, New York County.

Action.by Jesse A. Wasserman and others against Gustavus A. Pfizer. From an order denying motion to place the case on the, special calendar of the Trial Term, plaintiffs appeal.

Reversed, and motion granted.

Argued before INGRAHAM, P. J„ and McLAUGHRIN, SCOTT, MILLER, and DOWLING, JJ.

Henry M. Wise, of New York City, for appellants.

Geo. C. Lay, of New York City, for respondent.

This appeal is taken from an order denying a motion to place the cause on the special calendar of Trial Term, Part II. The action is brought to recover upon two promissory notes made by defendant to- the order of plaintiff. Under rule 5, § 2, for the regulation of Trial Terms in this district, such an action is entitled to be placed upon the special calendar.

The fact that a defense is interposed which seeks equitable relief' does not bar the right of plaintiff to the assignment of his action for trial on such calendar; for, if defendant desires the separate trial of such issue, his remedy is under section 987, Code of Civil Procedure. Nor does the fact that an action has been commenced by defendant against plaintiffs before the commencement of the present action furnish any reason for denying to plaintiffs the speedy trial to which they are entitled under the rule.

The order appealed from is reversed, with $10 costs and disbursements, and the motion to place the cause on the special calendar is granted. All concur.