p. 313PEOPLE ex rel. TYNG v. FEITNER et al.(Supreme Court, Appellate Division, First Department.Headnote
1. Trial—Special Calendar — Transfer of Issues—Sufficiency of Application.Under rule 3 of the trial term of the supreme court in the First district, providing that there shall be placed upon the special calendar all cases entitled to preference under the Code, and all issues to be tried by a jury, it is not necessary to claim a preference in the notice for trial, or to serve a motion for preference, in order to entitle an issue in a special proceeding to be tried by a jury to be placed on the special calendar.
2. Same—Time of Application.
An application for an order placing upon the special calendar an issue to be tried by a jury may be made at any time after the service of notice of trial and- the placing of the cause on the calendar.
Mandámus, on the relation of Charles Rockland Tyng, against Thomas L. Feitner and others. From an order denying a motion to place the cause upon the preferred calendar, relator appeals.
Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, and INGRAHAM, JJ.Richmond Weed,- for appellant.
Terence Farley, for respondents.
We think this application should have been granted. The motion was not made for a preference under the Code, but under rule 3 of the rules for the regulation of the trial terms of the supreme court in the First judicial district. By that rule it is provided that upon this special calendar, to be called in part 2 of the trial term, are to be placed all cases entitled to a preference under the Code, and also that there shall be placed upon this calendar for trial all issues and special proceedings to be tried by a jury, and any issue in an equity action as to which the parties are entitled by law to a jury trial, where such issues have been framed to- be so tried. To entitle the issues in a special proceeding to be tried by a jury to be placed upon this calendar for trial, it is not necessary
p. 314to claim a preference in the notice of trial, or to serve a notice of motion for a preference with the notice of trial. Issues in a special proceeding to be tried by a jury are to be placed upon this calendar, not because such issues are entitled to a preference by the Code, but because the rule makes such a provision for the trial of such issues. In such a proceeding a party may make an application for an order placing the issues upon this calendar for trial at any time after the service of a notice of trial and placing the cause upon the calendar.
The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion granted. All concur.