Dieter v. Title Guarantee & Trust Co. — 89 N.Y.S. 110

Majority

p. 110

(96 App. Div. 168.)

DIETER et al. v. TITLE GUARANTEE & TRUST CO. et al.

(Supreme Court, Appellate Division, First Department.

July 13, 1904.)

Headnote

1. Continuance—Counsel Engaged in Appellate Division.

A postponement of motion appearing as No. 46 on the motion calendar of the Special Term should be -granted under the rules of the Appellate Division, counsel being actually engaged in the Appellate Division in a case standing No. 3 on the calendar thereof.

Appeal from Special Term, New York County.

Action by Annie F. Dieter, impleaded in the place of George H. Huntington, against the Title Guarantee & Trust Company and another. From an order reviving and continuing the action, plaintiff appeals.

Reversed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, PATTERSON, and O’BRIEN, JJ.

H. J. McCormick, for appellant.

W. B. Ewing, for respondents.

It appears from the record in this case that this motion was brought before the court upon an order to show cause, which was served only the day before the returii day, although it appears to have been granted two days prior to such service. Upon the return' day the motion appeared as No. 46 on the motion calendar of the Special Term. On the same day the counsel for the appellant herein had a case upon the calendar of the Appellate Division which stood No. 3 thereon. Application was made to the court at Special Term for a postponement of the motion, as the

p. 111

counsel was actually engaged in the Appellate Division. This application was denied, and the motion was thereupon granted by the court.

We think, under the rules of the Appellate Division, the appellant had a right to a postponement, and the denial thereof was error.

The order appealed from must be reversed, with $10 costs and disbursements, and the motion remitted to the Special Term for hear-insr. All concur.