Schwartz v. Interurban Street Railway Co. ( 1908 )

GIRDERSREEVE, J.

Issue in this case was joined on January 24, 1903. A note of issue was not filed until March 7, 1905, on which day plaintiff served a notice of trial for the April, 1905, term. The defendant served a cross-notice of trial for said term on March 13, 1905. The case should have been, and presumably was, placed upon the calendar as of the date of issue, viz., January 24, 1903. Section 977, Code Civ. Proc. In the summer of 1905 the City Court promulgated a rule requiring litigants having causes on the general calendar to file a new note of issue, in order to have their cases appear upon the general calendar of that court. This rule was an invalid one. Rauchberger v. Int. St. Ry. Co., 52 Misc. Rep. 518, 102 N. Y. Supp. 561. The plaintiff’s attorney, however, endeavored to file a new note of issue, and his managing clerk made one and gave it to another clerk to file with the clerk of the City Court, and upon the record book of the plaintiff’s attorney there appears an entry of the filing of such note of issue on August 31, 1905. Upon attempting again to comply with the rule in 1906, however, the plaintiff’s attorney was informed by the clerk that the latter note of issue could not be accepted, for the reason that none had been filed in 1905. After the appellant’s attorney ascertained that the case was not on the calendar, it appears that he used due diligence in his efforts to have it restored.

The situation is this: If no issues of a younger date than January, 1903, were tried prior to the filing of a note of issue in March, 1905, and there is no evidence that there were, such prior issues could not be reached in regular order and disposed of previous to the present case, without the case having appeared upon the day calendar, as section 977 of the Code of Civil Procedure provides that all causes shall be placed upon the calendar as of the date of issue. Thus, when the note of issue was filed in March, 1905, this cause would thereafter have appeared upon the general calendar, and reached the day calendar for disposal in due course, prior to younger issues, except for the invalid rule aforesaid, which practically struck it from the calendar in 1905. This case, therefore, falls within the case of Rauchberger v. Int. St. Ry. Co. supra, where the court said:

“It would seem that the only neglect, If any there was, with which the plaintiff is properly chargeable, was in his failure to file a new note of issue in accordance with the provisions of the rule adopted by the justices of the City Court in the year 1905. * * * There is nothing in the record to show that issues younger than those in the case at bar were reached and tried in 1905.”

We also there held that, under such circumstances and in a case where the statute had run against plaintiff’s cause of action, as it has in the case at bar, a dismissal of the complaint was too severe a punishment to be imposed.

Orders reversed, with disbursements, but without costs, and case restored to the calendar of the City Court; date of trial to be fixed by that court. All concur.