United States Glass Co. v. Levett — 48 N.Y.S. 887

Majority

p. 887

UNITED STATES GLASS CO. v. LEVETT et al.

(Supreme Court, Appellate Division, First Department.

December 31, 1897.)

Headnote

Special Calendar—Motion to Strike.

Upon appeal from the denial of a motion to strike a case from the special term calendar, held, that if there is any doubt whether, upon the pleadings, equitable relief could be granted, the question should be determined upon a trial, and not otherwise, and that the motion was properly denied.

Appeal from special term.

Action by the United States Glass Company,”on behalf of itself and all others similarly situated, against Alexander Levett and others. From an order denying a motion to strike case from special term calendar, defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.

Morris J. Hirsch, for appellants.

Albert K. Newman, for respondent.

The rights of the parties should not be adjudged upon this appeal. If, upon a trial at special term, plaintiff should not show a right to equitable relief, the complaint would be dismissed; but, if there is any doubt whether upon the pleadings equitable relief could be granted, the question should be determined upon a trial, and not otherwise.

The order should be affirmed, with $10 costs and disbursements.