Darby v. Metropolitan Street Railway — 79 N.Y.S. 1053

Majority

p. 1053

DARBY v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department.

January 23, 1903.)

Headnote

1. Calendar—Restoration of Cause—Power op Court.

Where both parties moved to have a cause restored to the calendar, but differed as to what place it should occupy, the court had power to decide in favor of plaintiff’s contention by restoring it to its' original position.

Appeal from trial term, New York county.

• Action by Mary Darby against the Metropolitan Street Railway Company. From an order restoring the cause to the general trial calendar, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGH-LIN, O’BRIEN, and INGRAHAM, JJ.

Bayard H. Ames, for appellant.

George W. Alger, for respondent.

The order should be affirmed. Both parties moved to have the cause placed upon the calendar, the question in difference between them being as to what place thereon it should occupy; the defendant claiming that it should go to the foot of the calendar, and the plaintiff that it should be restored to the place it originally occupied. The court decided in favor of the plaintiff’s contention. This was clearly within its power, as the motion was made. The case differs from that of Hix v. Light Co. (decided herewith) 79 N. Y. Supp. 1016 , where the motion was opposed by the defendant, and this court held that no sufficient reason was given excusing the neglect to comply with the special order regulating a new calendar.

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