Eisenstein v. Old Dominion Steamship Co.

City of New York Municipal Court

Eisenstein v. Old Dominion Steamship Co.

106 N.Y.S. 857

DecidedAugust 15, 1907

StatusPublished

This text of 106 N.Y.S. 857 (Eisenstein v. Old Dominion Steamship Co.) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eisenstein v. Old Dominion Steamship Co., 106 N.Y.S. 857 (N.Y. Super. Ct. 1907).

Pincite

Opinion

WADHAMS, J.

Motion is made for an order placing the cause on the special calendar for actions the trial of which will not occupy more than two hours. Objection is made that the motion is prematurely brought, in that the cause has been noticed for the first Monday "of October, 1907, and that a motion to advance should not be entertained until after that date. Rule 2 of the Rules of the City Court of the City of New York provides in respect to such motions:

“In actions on contract, of replevin or for conversion, where a note of issue has Been filed and the cause noticed for trial, either party may apply to the Special Term, on two days’ notice to the adverse party, for an order placing the cause on the special calendar.”

In this action a note of issue has been filed and the cause noticed for trial. The language of the rule is clear and its meaning plain. In the absence of some controlling reason to the contrary, the rule should be construed according to its explicit terms. No such reason is presented.

It is urged that until the date for which the cause is noticed for trial no cause can properly be said to be upon the calendar of the court. Such is not the practice. The note of issue having been filed, the cause has been given a number and placed upon the general calendar. The

[858]*858rule in question requires that “the order shall specify the number of the cause on the general calendar.” After notice of trial the disposition of the action by trial must then await the term for which the action is noticed, but a motion to transfer the cause from the general to the special calendar may, under the rule, be made either before or after the term for which the cause has been noticed. The practice prescribed is uniform with that in other courts of record under similar rules, and with that upon motions for preference under section 793 of the Code of Civil Procedure. Moreover, it is in aid of the disposition of business, preventing the crowding of the Special Term calendar at the end of the summer recess, and enabling the calendars to be prepared in advance of the opening of the term for which the cause is noticed.

It appearing that the trial will not require more than two hours, the motion is granted.

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WADHAMS, J.

Motion is made for an order placing the cause on the special calendar for actions the trial of which will not occupy more than two hours. Objection is made that the motion is prematurely brought, in that the cause has been noticed for the first Monday "of October, 1907, and that a motion to advance should not be entertained until after that date. Rule 2 of the Rules of the City Court of the City of New York provides in respect to such motions:

“In actions on contract, of replevin or for conversion, where a note of issue has Been filed and the cause noticed for trial, either party may apply to the Special Term, on two days’ notice to the adverse party, for an order placing the cause on the special calendar.”

In this action a note of issue has been filed and the cause noticed for trial. The language of the rule is clear and its meaning plain. In the absence of some controlling reason to the contrary, the rule should be construed according to its explicit terms. No such reason is presented.

It is urged that until the date for which the cause is noticed for trial no cause can properly be said to be upon the calendar of the court. Such is not the practice. The note of issue having been filed, the cause has been given a number and placed upon the general calendar. The

[858]*858rule in question requires that “the order shall specify the number of the cause on the general calendar.” After notice of trial the disposition of the action by trial must then await the term for which the action is noticed, but a motion to transfer the cause from the general to the special calendar may, under the rule, be made either before or after the term for which the cause has been noticed. The practice prescribed is uniform with that in other courts of record under similar rules, and with that upon motions for preference under section 793 of the Code of Civil Procedure. Moreover, it is in aid of the disposition of business, preventing the crowding of the Special Term calendar at the end of the summer recess, and enabling the calendars to be prepared in advance of the opening of the term for which the cause is noticed.

It appearing that the trial will not require more than two hours, the motion is granted.

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Bluebook (online)

106 N.Y.S. 857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eisenstein-v-old-dominion-steamship-co-nynyccityct-1907.