p. 315Ignatz Weiss et al., Resp’ts, v. Joseph B. Morrell et al., App’lts.(New York Common Pleas, General Term,Headnote
1. Trial—Notice—Date.Where the date in a notice of trial is obviously a clerical error, the defect is waived by the retention of the notice.
Courts have power to appoint a short calendar and place causes thereon for trial out of their order upon the general calendar.
Common pleas will not interfere where the appeal involves a mere question of procedure in the city court and does not affect any substantial right on the merits.
Appeal from the affirmance, by the general term of the city court, of an order advancing a cause to the short cause calendar; and from an order denying a re-settlement thereof; and from an order denying a motion to strike the case both from the special and general calendar of the court.
Charles Edward Souther, for app’lts; Alfred B. Jaworower and Louis Lowenstien, for resp’ts.
A notice of trial was served by plaintiff’s attorney upon the defendant’s attorney on the 23rd of December, 1893, ’for the second day of January, 1893. The latter date was obviously a clerical error and the defect might be waived by the party receiving the notice; and in this case it was waived because the notice was retained. If defendants intended to object to the irregularity they should have returned the paper with a notification of their reasons and then a proper notice of trial could have been served. By retaining the paper they must be deemed to have regarded it as a sufficient notice and in that case it was a notice for the coming January as it would not have been a sufficient notice for a past date. The ease was therefore properly on the general calendar and might be placed upon the special calendar for short causes. The appeal is mainly argued on the question as to whether the courts of this state have power to appoint a short cause calendar and place causes thereon for trial out of their order upon the general calendar. It is claimed that this is giving a preference to certain causes not enumerated in the statute of preferences. Code of Civil Procedure, chap. 8, title 6, art. 2. The provisions of the Code are not exclusive, and do not limit the power of the courts over their calendars, nor consequently prohibit the establishing a calendar ■ for short causes, according to the practice of all the courts long before the adoption of the present Code. The general rules of practice under which such summary trials are had, are not inconsistent with any provision of the Code; for since the statute recognizes the propriety of granting certain preferences, the granting of a preference in any other special case is entirely consistent with the statutory provision. The short cause rule is also attacked upon the ground that the right to move under it is confined to the plaintiff, to the exclusion of a defendant who
p. 316has pleaded a counterclaim and who is entitled to all the remedies-of a plaintiff. As the defendants here do not set up a counterclaim it is not necessary to discuss this point. It by no means follows, however, that under the rules of the city court, or of the other courts, a defendant with a counterclaim would not be allowed to move for the short cause calendar. Ho injury was done to the defendants by the entry of the order setting the cause down for the 4th instead of the 2nd of January, which latter date was that specified in the notice. The decision upon the motion not having been rendered in time for a trial upon the latter date (owing to the rule which requires that the order be filed with the clerk at least two days before the day on which a case shall be entered on the special calendar) it was proper to fix a latter date. As defendants had notice of such date they were not injured and their motion to re-settle the order and to strike the cause from the special calendar was properly denied. These appeals involve a mere question of procedure in the city court and do not affect any substantial right or the merits. In such case this court will not. interfere.
Waters v.
Curtis, 13 Daly, 179 ;
Whitney v. Townsend, 67 N. Y. 40 . Orders appealed from affirmed with costs and disbursements.