City of New York v. Shack

Appellate Division of the Supreme Court of New York

City of New York v. Shack

81 A.D. 575, 81 N.Y.S. 392

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1903

StatusPublished

This text of 81 A.D. 575 (City of New York v. Shack) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of New York v. Shack, 81 A.D. 575, 81 N.Y.S. 392 (N.Y. Ct. App. 1903).

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Opinion

Per Curiam:

This action was brought for the collection of arrears of personal property taxes, assessed for the year 1898 at the sum of $100.50. The defendant was served with a summons and complaint in the action on September 9, 1901. The defendant’s time to answer was extended at various-times down to October 23, 1902. On October 22, 1902, the defendant served his answer and on January 6, 1903, he served an amended answer. On January 19, 1903, the plaintiff served a notice of trial, which also contained a notice of motion to [576]*576place the cause upon the preferred calendar, which notice read as follows, to wit: “ And at the same time a motion will be made on the pleadings at Part II of said court to give this action a preference upon the calendar, under the provisions of the Code of Civil Procedure, Section 791, Subdivision 2.”

The point made by the appellant is that the notice for preference was not in compliance with the Code, in that it did not state the particular day in the term at which it would be moved. Whether the notice is sufficient in that respect it is not neeessáry at this time to consider. Subdivision 1 of section 791 of the Code of Civil Procedure provides for the service of a notice of trial for a particular day in the term at which the case will be moved, and unless compliance be had with the Code provisions in this respect “ it shall not be moved out of its order at that term except by the special order of the court.” Subdivision 2 of the same section makes the quoted provision applicable to cases for which provision is made therein. If we assume that the notice was insufficient it does not avail the appellant, for the court by special order advanced the cause as preferred and placed it upon the calendar for a particular day., This the court was authorized to do, whether the notice was sufficient or not, and as the court had power to grant the order, the cause was regularly placed upon the preferred calendar.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Present—Van Brunt, P. J., Patterson, O’Brien, Ingraham and Hatch, JJ.

Order affirmed, with ten dollars costs and disbursements.

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Per Curiam:

This action was brought for the collection of arrears of personal property taxes, assessed for the year 1898 at the sum of $100.50. The defendant was served with a summons and complaint in the action on September 9, 1901. The defendant’s time to answer was extended at various-times down to October 23, 1902. On October 22, 1902, the defendant served his answer and on January 6, 1903, he served an amended answer. On January 19, 1903, the plaintiff served a notice of trial, which also contained a notice of motion to [576]*576place the cause upon the preferred calendar, which notice read as follows, to wit: “ And at the same time a motion will be made on the pleadings at Part II of said court to give this action a preference upon the calendar, under the provisions of the Code of Civil Procedure, Section 791, Subdivision 2.”

The point made by the appellant is that the notice for preference was not in compliance with the Code, in that it did not state the particular day in the term at which it would be moved. Whether the notice is sufficient in that respect it is not neeessáry at this time to consider. Subdivision 1 of section 791 of the Code of Civil Procedure provides for the service of a notice of trial for a particular day in the term at which the case will be moved, and unless compliance be had with the Code provisions in this respect “ it shall not be moved out of its order at that term except by the special order of the court.” Subdivision 2 of the same section makes the quoted provision applicable to cases for which provision is made therein. If we assume that the notice was insufficient it does not avail the appellant, for the court by special order advanced the cause as preferred and placed it upon the calendar for a particular day., This the court was authorized to do, whether the notice was sufficient or not, and as the court had power to grant the order, the cause was regularly placed upon the preferred calendar.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Present—Van Brunt, P. J., Patterson, O’Brien, Ingraham and Hatch, JJ.

Order affirmed, with ten dollars costs and disbursements.

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Bluebook (online)

81 A.D. 575, 81 N.Y.S. 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-shack-nyappdiv-1903.