Watson v. Phyfe , 5 N.Y. St. Rep. 328 ( 1887 )

Andrews, J.

Plaintiff’s counsel is mistaken in supposing that the court has any discretion in regard to granting or denying this motion. The action has been once tried, and upon such trial the complaint was dismissed. On appeal, the decision of the court below was reversed, and -a new trial ordered. The defendant desires that a re-trial should be speedily had, but the plaintiff wishes the new trial postponed.

It is perfectly well settled that in a case like this, either party has a, right to have the case placed on the day calendar for trial. It is not a question of whether the action shall have a preference, which is addressed to the discretion of the court, but a matter of absolute right. There has been some difference of opinion in regard to the status of an action which has been once tried, and where, on appeal, a new trial has been ordered. Section 977 of , the Code provides that in this district an action once noticed for trial shall remain on the calendar until it has been disposed of. Whether an action which has been tried has been disposed of, depends upon whether an appeal is taken, and upon the disposition of such appeal which is made by the general term. If a new trial is ordered, the case cannot be said to have been disposed of. In cases of this character, it is considered by some of the judges that the action is to be regarded as holding the same position as though it had been marked generally reserved, and that either party has a right to have it put on the day calendar on two days’ notice. It is thought by others that in cases of this character the action must, in this district as well .as in others, be re-noticed for. trial, and á new note of issue filed with the clerk. ■ -So far as I am aware, however, it has always boon held that in cases of this description cither party has a right to have the case placed on the day calendar. An order must, therefore, be entered directing the clerk to place this action on the day calendar.

The order will be settled on notice.^*

* The order entered upon this decision merely directed the clerk to " place the above entitled action upon the day calendar.”