Hix v. Edison Electric Light Co. ( 1903 )

PATTERSON, J.

By an order of the appellate division of the supreme court, in the First department, dated April 28, 1902, it was indicated that a new calendar of issues of fact for the trial term was to be made up for October, 1902. It was also directed in such order that no cause upon the then present general calendar of such issues should be placed on the new calendar unless a notice were filed with the clerk on or before the 8th day of September, 1902, stating that such cause had not been disposed of or settled, and “specifying thereon the title in full, the attorneys’ names, the date of issue, and the number of the cause on the present calendar.” This order was made pursuant to the practice which has obtained for some 40 years in this department in making up a new general calendar of issues to be tried at the circuit courts or at the trial terms. The purpose of the order was to sift the calendar, and remove therefrom all cases that had ceased to present living issues. The above-entitled cause had been upon the general calendar for the trial of jury issues prior to 1902, but the plaintiff failed to file the note of issue required by the order of the appellate division of April 28, 1902. In November, 1902, the plaintiff made a motion to have the cause restored to its position on the calendar of the court made up in October, 1902; and the only ground upon which the application was made was that the plaintiff’s attorney had instructed one of the clerks in his office to file a new note of issue, and that he (the attorney) was greatly surprised to learn that it had not been done, and the case did not appear upon the calendar of the court. That is not a sufficient excuse. The order of the appellate division was one made pursuant to the regular course of practice, and was necessitated by a condition Into which the general calendar for jury trials from time to time falls in the city of New York. It is not meant to be such an inflexible rule as to prevent the granting of an application to have a cause put upon a new calendar where a sufficient and reasonable excuse is presented for not complying with it within the time specified therein. The excuse offered here cannot be accepted as sufficient, and the order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.