Haskin v. Murray — 51 N.Y.S. 545

Majority

p. 545

HASKIN v. MURRAY et al.

(28 App. Div. 548.)

(Supreme Court, Appellate Division, First Department.

May 6, 1898.)

Headnote

Trial—Order of Preference—Vacating.

Upon an application for a preference, which should have been made at trial term, part 2, but was made at special term, an order was granted setting the case down on the trial term calendar, and from this order an appeal was taken. Pending this appeal, a motion was also made at trial term, part 2, to vacate the order. Held, that the court properly refused to vacate the order, and left the party to his remedy by appeal.

Appeal from trial term, New York county.

p. 546

Action by John B. Haskin against Elizabeth J. Murray and others-From an order denying a- motion to vacate an order of preference, defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY,. McLaughlin, and ingraham, jj.

John M. Bowers, for appellants.

Abel Crook, for respondent.

This was an application made to the trial term,, part 2, to vacate an order granted by the special term directing that this cause be set down on the calendar of the trial term of the court, part 2, on the first Monday of March, 1898. The motion was denied by Mr. Justice Truax, for the reason, as stated by him, that “I will not vacate an order duly made by another justice. The remedy is bvappeal.” We think the court below properly disposed of this application. The order directing the case to be set down had been made and decided by the special term of the court, and the appellants here had appealed from that order. The motion to vacate that order by the-trial term was unnecessary, as the question as to' the validity of the-order could be settled upon the appeal. As, however, we have reversed the order of the special term on the appeal taken from it, this-order should be affirmed, but without costs. All concur.