Birdsey-Somers Co. v. Sleeper , 135 N.Y.S. 1075 ( 1912 )

Bijub, J.

This case was duly placed on the short cause calendar of the City Court, but, as .the trial greatly exceeded two- hours and was still unfinished, the court announced that it would make an order putting the case “ on the long, cause calendar for some day the next week,” to which the defendant duly objected. Thereafter the order appealed from was signed, restoring the case to the general calendar and setting it down for the 9th day of March, 1912.

By Bule II of the City Court, “ If the trial shall actually occupy more than two- hours, the court may, in its discretion, send the cause to the foot of the general calendar.” This does not permit the court to set the case down for any particular day on the general calendar, as such a disposition may well bring the cause on for trial ahead of younger issues. The discretion vested in the court is either to hear the case through, or to send it to the foot of the general calendar. There is nothing in section 791 of the Code to justify this preference by the court. It does not appear from the pleadings that the status of the parties to the action, or the issues involved, bring the case within that section, nor was a notice of preference served with the notice of trial or an application upon due notice made for an order preferring the case as provided in section 793 of the Code.

The order, so far as appealed from, must, therefore-, be reversed, with ten dollars costs and disbursements and the case restored to the foot of the general calendar as of the date of the mistrial.

Seabuky and Lehman, JJ., concur.

Order, so far as appealed from, reversed.