Schulman v. Pugh

Per Curiam.

Rule 10 of Central Motion Part Rules of the Municipal Court provides that certain motions, including a motion for a new trial, “ shall be made returnable before the Justice by whom * * * the trial was had ” and “ shall not be considered unless brought on by order to show cause signed by the Judge who made the original decision, unless it be shown that he is not available, in which event the order to show cause may be signed by another Judge.”

The refusal of the justice to sign defendant’s proposed order to show cause why a new trial should not be granted, on papers sufficient to call upon the plaintiff for reply, deprived defendant of the substantial right of moving for a new trial. Defendant was entitled to bring on her motion for a hearing in accordance with the rule, and the action of the justice in directing the parties to appear before him for argument, without any affidavits in opposition, and writing “ denied ” on the face of the motion papers, may not be deemed performance by the justice of his duty under the rule.

Order reversed, with ten dollars costs, and matter remitted to the justice below to grant order to show cause.

All concur. Present — Lydon, Hammeb and Fbanken-

THALEB, JJ.