Watson v. Phyfe

Headnote

A case upon the general calendar in the Mrst Department, which 7ias been reversed at General Term, may be placed on the day calendar at the circuit on two daps’ notice — no new notice of tiial is necessary when a new calendar is made up.

Appeal from an order of Mr. Justice Andrews to advance a cause and place it on the day calendar for the first Monday in March.

The cause was at issue in July, 1884, and was tried in October, 1885, and a verdict rendered by direction of the court for defendants. This judgment was reversed by the General Term and a new trial ordered in January, 1887. The order of reversal was entered February 18, 1887. The cause was noticed for trial for the first Monday in March, on the 19th day of February, 1887, the last day in which causes could be noticed for trial for the March term.

The court at General Term affirmed the order, saying: “ 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! 1 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 to abide the event.”