Gould v. Chapin

5 How. Pr. 358

• Court: New York Supreme Court
• Decided: June 15, 1850
• Status: Published

Opinion

By the Court,

Wtelles,'Justice.

Neither the Code or the present rules have provided in what order causes shall be placed on the general term calendar. The former practice must therefore govern (§ 469 of the Code and rule 92 of this court.) Law rule 51 of the rules of this court, adopted in July 1847, provided that the note of issue to be filed with the clerk should contain, among other things, “ the date when the question arose,” and rule 53 of the same rules required the clerk to make up the calendar according to such dates. Such had long been the practice before (Gr. Pr., 2d ed. 671-2), and there is nothing inconsistent with it in the Code or the present rules of this court.

In case of a motion to set aside an inquisition or report, the question was deemed to have arisen on the day when the writ of inquiry with the return, or when the inquisition or report was filed (id 672). In analogy to that practice we think the question in this case must be deemed to have arisen on the day when the report of the referee was filed.

Let the calendar be corrected accordingly.