Garner v. Hellman

47 Misc. 336, 93 N.Y.S. 431

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1905
• Status: Published

Opinion

Scott, J.

We are ordinarily reluctant to interfere with the action of the court below in advancing a cause to the special calendar for short causes, and in the present ease it is not made to appear that the discretion of the justice making the order was abused. There is involved however in this appeal a question more important than any question of discretion, and that is the impropriety of renewing before one justice a motion which had already been heard and denied by another, without first obtaining leave of the court. This practice has been uniformly and very properly condemned by the courts. It does not help matters that the rules of the Oity Court have recently been amended by increasing the time to be allowed for a trial on the special calendar. The papers on appeal do not contain this rule, but wé are apprised of its existence by one of the briefs. It is true that it might be proper to advance a causé when two hours are given for its trial, and would be improper to so advance it if only one hour were allowed. ’ In this sense the question to be considered on the second motion may have differed slightly from that presented on the first, but the motion was identical. The change in the rule might have been a potent argument on a motion for leave to renew, but did not obviate the necessity for obtaining such leave.

Order reversed with costs and disbursements and motion denied, with ten dollars costs, without prejudice to an application below for leave to renew the motion to advance the cause, and to so renew it if leave be obtained.

Leventbitt and Gbeeitbaum, JJ., concur.

Order reversed with costs and disbursements and motion denied, with ten dollars costs, without prejudice ,to an application below for leave to renew motion to advance causey and to so renew if leave be obtained.