Keen v. Johnson — 51 N.Y.S. 1144

Majority

p. 1144

KEEN et al., Appellants, v. JOHNSON, Respondent.

(Supreme Court, Appellate Division, First Department.

May 20, 1898.)

Headnote

Appeal from special term. Action by Charles B. Keen and another against Charles A. Johnson. From an order striking ease from special term calendar, plaintiffs appeal. Affirmed. R. B. Moffatt, for appellants. E. T. Paul, for respondent.

The order, so far as it directs that this cause should be stricken from the special term calendar, was proper. The action should be tried at a trial term of the court, where it properly belongs. So much of the order, therefore, as grants the -motion to strike the cause from the special term calendar, with costs, should be affirmed. But the court below, having all the facts before it, should not have provided for a further application as to the mode of trial. So much of the order, therefore, as grants leave to either party to apply as he may be advised for an order directing the mode of trial of issues in the action, should be stricken out. No costs to either party of this appeal.