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Bornstein v. Diskin

84 N.Y.S. 248 Court N.Y. App. Term Decision date 1903-06-22 English

Delivered by MacLEAN, J.

Contents

Majority

p. 248
BORNSTEIN et al. v. DISKIN et al.
(Supreme Court, Appellate Term.
June 22, 1903.)

Headnote

1. Practice—Striking Case from Calendar—Moving Papers—Sufficiency.
A motion to strike a case from the calendar was properly denied where it did not appear from the moving papers that the attorney for the defendant who appeared and answered was attorney for the codefendants, or that he knew that the latter had not been served, or that the case was not at issue by default.
Appeal from City Court of New York, Special Term.
Action by Joseph Bornstein and another against May Diskin and others. From an order denying a motion to strike the case from the calendar, defendants appeal. Affirmed.
p. 249
Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.
Menken Bros., for appellants.
Shapiro & Shapiro, for respondents.

It not appearing from the moving papers that the attorney for the defendant who did appear and answer was the attorney for the codefendants, or that he knew the latter had not been served, or that the case was not at issue by default, the court below properly refused to strike the case from its calendar, and its order must be affirmed, with costs.

Order affirmed, with costs. All concur.