Watson v. Phyfe — 9 N.Y. St. Rep. 262

Majority

p. 262

Mary M. Watson, App’lt, v. John D. Phyfe, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 13, 1887.)

Headnote

Pbactice—Calendas—Putting case on day calendan—Pbeeekence.

Where there has been a reversal at the general term and a new trial hasi been ordered, if the case is upon the general calendar the party may move' upon two days’ notice at the circuit to have the case placed upon the day calendar for trial. If pending the appeal, a new calendar has been made up and the case has been omitted from such new calendar, either party may move at circuit to have the case restored to the general calendar in' the place its original date of issue entitled it to occupy, and may then,' move it on the day calendar on two days’ notice. No new notice of trial-is necessary. . i,

p. 263

Appeal from order of special term, granting preference, etc.

G. M. Curtis, for app’lt; C. N. Bovee, Jr., for resp’t.

In a case like the one at bar where there has been a reversal at the general term and a new trial has been ordered, if the case is upon the general calendar the party may move upon two days’ notice at the circuit to have the case placed upon the day calendar for trial. If, pending the appeal, a new calendar has been made up and the case has been omitted from such new calendar, the party desiring to place the case upon the calendar may move at circuit to have the case restored to the general calendar in the place its original date of issue entitled it to occupy; and may then make a motion upon two days’ notice to have the same put upon the day calendar for trial. No new notice of trial is necessary as the case has not been disposed of. In the case at bar the motion was improperly made at the special term or chambers, but as no such objection was taken upon the hearing of the motion it cannot be considered upon this appeal.

The order appealed from should be affirmed, with ten dollars costs and disbursements to abide the event.