De Smet v. Niles

156 N.Y.S. 164

• Court: New York County Courts
• Decided: December 15, 1915
• Status: Published

Opinion

GIBBS, J.

This is a cross-motion. The plaintiff moves this court for an order amending the plaintiff’s notice of trial nunc pro tune to read, “at a Trial Term appointed to be held in and for the county of Bronx,” instead of “the county of New York,” and the defendant moves for an order striking the cause herein from the calendar, upon the ground that the plaintiff’s notice of trial is defective, in that the venue is laid in the county of New York instead of the county of Bronx. The notice of trial in question reads as follows:

“County Court, Bronx County. [Title of the Action.] Sirs: Please to take notice that the issues of fact in this action will be brought to trial and an inquest taken therein at a Trial Term of this court appointed to be held in and for the county of New 7orlc, at the County Courthouse, in the borough of the Bronx, city of New York, on the first Monday of December, 1915, at 9:45 o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard.

“Dated, New York, November 6th, 1915.”

This notice indicates as clearly as anything can be indicated that the reference to New York in the body of the notice is a clerical error. It is an apparent absurdity that a Trial Term of the County Court of the county of Bronx is to. be held in and for the county of New York, at the county courthouse of the borough of the Bronx, and must have been recognized as such by counsel for the defendant.

It seems to me that under the circumstances it would be an undue hardship upon the plaintiff to strike the cause from the calendar for what is palpably a technical irregularity. It follows, therefore, that the plaintiff’s motion to. amend the notice of trial nunc pro tune should be granted, and defendant’s motion to strike the cause from the calen-, dar denied.

Order signed.