Adler v. Joseph Autler Co.

Appellate Terms of the Supreme Court of New York

Adler v. Joseph Autler Co.

140 N.Y.S. 1039

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 10, 1913

StatusPublished

This text of 140 N.Y.S. 1039 (Adler v. Joseph Autler Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adler v. Joseph Autler Co., 140 N.Y.S. 1039 (N.Y. Ct. App. 1913).

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Opinion

LEHMAN, J.

Plaintiff’s attorney on December 9th had two cases on the caH calendar marked “Ready.” The first case was sent to another part for trial, and this-case was held subject to counsel’s engagement in the first case, and the court- announced that it would be called the next day for final disposition. It appears that the case which was sent to another part for trial was settled, and counsel then entered upon the trial of another case in the federal court. On the call of the calendar on December 10th an affidavit that counsel was actually engaged in another case was presented to the court; but the court marked the case “Ready,” and at the conclusion of the case then on trial ordered a dismissal. Plaintiff then moved to open his default, but the motion was denied.

The judge calling the calendar was entirely justified in insisting upon a speedy trial of the cases on the calendar; but, on the other hand, counsel had a right to presume that reasons which under the rules of the court require that a case be passed for the day would be accepted by .the court. The rules provide that, where counsel is actually engaged in the trial of a cause, the case shall be passed for the day; but in no event shall a case be passed from day to day for this reason for more than two days. If the two cases had been sent to the same part for trial, the one case to follow the other, then' upon the conclusion of-the first case the trial judge would have had a right to insist upon the immediate trial of the second case. Where, however, the second case could only be tried on the following day, counsel had a right to enter into a trial in another case, and to have the case originally marked “Ready” passed for a second day. Counsel could not in the intervening time have refused to enter into the trial of another case, for he was not then actually engaged in the trial of another cause, and, having entered upon another trial, he was entitled to the protection afforded by the rules.

The order should be reversed, with $10 costs and disbursements, and the motion granted, without costs. All concur.

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LEHMAN, J.

Plaintiff’s attorney on December 9th had two cases on the caH calendar marked “Ready.” The first case was sent to another part for trial, and this-case was held subject to counsel’s engagement in the first case, and the court- announced that it would be called the next day for final disposition. It appears that the case which was sent to another part for trial was settled, and counsel then entered upon the trial of another case in the federal court. On the call of the calendar on December 10th an affidavit that counsel was actually engaged in another case was presented to the court; but the court marked the case “Ready,” and at the conclusion of the case then on trial ordered a dismissal. Plaintiff then moved to open his default, but the motion was denied.

The judge calling the calendar was entirely justified in insisting upon a speedy trial of the cases on the calendar; but, on the other hand, counsel had a right to presume that reasons which under the rules of the court require that a case be passed for the day would be accepted by .the court. The rules provide that, where counsel is actually engaged in the trial of a cause, the case shall be passed for the day; but in no event shall a case be passed from day to day for this reason for more than two days. If the two cases had been sent to the same part for trial, the one case to follow the other, then' upon the conclusion of-the first case the trial judge would have had a right to insist upon the immediate trial of the second case. Where, however, the second case could only be tried on the following day, counsel had a right to enter into a trial in another case, and to have the case originally marked “Ready” passed for a second day. Counsel could not in the intervening time have refused to enter into the trial of another case, for he was not then actually engaged in the trial of another cause, and, having entered upon another trial, he was entitled to the protection afforded by the rules.

The order should be reversed, with $10 costs and disbursements, and the motion granted, without costs. All concur.

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Bluebook (online)

140 N.Y.S. 1039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adler-v-joseph-autler-co-nyappterm-1913.