People ex rel. Barry v. Keller — 55 N.Y.S. 29

Majority

p. 29

PEOPLE ex rel. BARRY v. KELLER et al.

(Supreme Court, Appellate Division, First Department.

December 16, 1898.)

Headnote

Trial—Calendar—Preference of Proceedings.

Under rule 3 of the appellate division, providing for a special calendar for jury trials, on which shall be placed “all issues in special proceedings to be tried by a jury,” a special proceeding, presenting issues raised by the return to an alternative writ of mandamus, requiring a jury trial, is properly placed on such special calendar.

Appeal from trial term, New York county.

Application for mandamus, on relation of William J. Barry, against John W. Keller and others. From an order granting a motion to prefer proceedings, defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, McLAUGHLIN, PATTERSON, and INGRAHAM, JJ.

Theodore Connoly, for appellants.

George F. Langbein, for respondent.

The order was properly granted. It was made pursuant to the terms of rule 3, made by the appellate division, First department, for the regulation of the trial term calendars. It is provided by that rule that there shall be a special calendar for trials by jury, on which shall be placed “all issues in special proceedings to be tried by a jury.” This was a special proceeding, presenting issues raised by the return to an alternative writ of mandamus. They could not be tried otherwise than by a jury, and were therefore properly placed on the special calendar referred to.

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