Hertzberg v. Bayer — 61 N.Y.S. 1138

Majority

p. 1138

HERTZBERG, Appellant, v. BAYER et al., Respondents.

(City Court of New York, General Term.

January 3, 1900.)

Headnote

Action by Hugo Hertzberg against William Bayer and another. From an order striking the case from the cal- ■ endar, plaintiff appeals. Reversed. William W. M. Speer, for appellant. Van Schaick & Nor- ' ¿on, for respondents.

In view of the affidavit -submitted by plaintiff’s attorney, sworn to in person, we think that the order appealed from •should not have been granted. In the affidavit St appears that in April last this action appeared -upon the day calendar. It also appears upon 'plaintiff’s brief, submitted upon this appeal, that lit "was marked “Reserved” generally. The Law Journal and judge’s calendar of April 6, 1899; sustain this statement. The clerk’s certificate as to whether the case was on the general calendar was not obtained by either plaintiff’s or defendants’ attorneys. If this had been done, the special term justice would not have been compelled to decide this motion upon the contradictory statements in the affidavits submitted. In view of the publication in the Law Journal, it is apparent that the statement, made by the managing clerk, that the case was not on the calendar, is not true; but, of course, it was not intentionally false. The order appealed from is reversed, without costs or disbursements to either party.

O’DWYER, J., concurs.