Herzfeld v. Strauss — 49 N.Y.S. 92

Majority

p. 92

(24 App. Div. 95.)

HERZFELD et al. v. STRAUSS et al.

(Supreme Court, Appellate Division, First Department.

December 31, 1897.)

Headnote

1. Appealable Order.

From an order denying a motion, made under Rule 6 of the General Rules of Practice in the First Department, to place a cause on the short-cause calendar, an appeal lies to the appellate division.

■3. Same—Short-Cause Calendar.

Where it is clearly established that the cause certainly cannot occupy two hours for its trial, the discretion exercised by the court below may be reviewed, and the motion granted.

Van Brunt, P. J„ dissenting.

Appeal from special term.

Action by Felix Herzfeld and others against Daisy Strauss and William Strauss. From an order denying a motion for preference, plaintiffs appeal.

Reversed.

Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

De Lancey Nicoll, for appellants.

Franklin Bien, for respondents.

This is an appeal from an order denying a motion to place this cause upon the calendar for the trial of short ■causes. The motion was made under Rule 6 of the General Rules -of Practice in the First Department, which rule took effect January 1, 1897. The ground of the motion was that the cause would not occupy more than two hours in its trial. The point is made by the respondents that the order is not appealable. The ordinary rule concerning motions of this character is that their disposition is within the judicial discretion of the court to which the motion is originally addressed; but there are cases in which it becomes the •duty of this court to review the discretion exercised below. From the papers presented in this record, it seems to us to be clearly ■established that this cause could not, in its trial, occupy two hours, and should not occupy half that time. Without expressing any

p. 93

opinion upon the merits of the controversy,, it is perfectly obvious that the plaintiffs’ proofs can be put in, in a few minutes; and, even if the defendants are allowed to go into the matters which are set up in the amended answer, these matters are so clearly stated, and are so readily susceptible of proof (if they exist), that they cam he put before the court and jury in a very short time.

The order appealed from should be reversed, with costs, and the motion to put the canse on the short-cause calendar granted, with costs.

WILLIAMS, O’BRIEN, and INGRAHAM, JJ., concur.

VAN BRUNT, P. J.

I dissent. There is no reason why apneals of this character should be encouraged by this court. I think it extremely doubtful whether this cause can be tried in two hou s. There will be a sharp controversy about the facts, and, under these circumstances, there is no evidence of an abuse of discretion in the denial of the motion in the court below.