Keane v. Connecticut Fire Insurance

138 Misc. 291, 245 N.Y.S. 420, 1930 N.Y. Misc. LEXIS 1612

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 10, 1930
• Status: Published

Opinions

Per Curiam.

It seems to us that Craig v. City of New York (228 App. Div. 275) does not preclude the granting of relief to the plaintiff in this action. There the Civil Practice Act amendment (§ 426, subd. 5), corresponding to section 16-a of the New York City Court Act (added by Laws of 1930, chap. 514), was enacted more than two years before the order appealed from in the- Craig case was made, so that the bar had ample notice of the amendment. Here, however, section 16-a of ^ the City Court Act was approved by the Governor and went into effect April .16, 1930, and when the notice of trial in this action was served, sixteen days thereafter, the plaintiff’s attorney was actually ignorant of the change in the practice depriving his client of a right to a jury trial unless the provisions of the amendment were complied with, and his attention was not called to the amendment until a notice to that effect appeared in the New York Law Journal on June sixth. Under the circumstances it was proper to relieve plaintiff of his default.

Order affirmed, with ten dollars costs and • disbursements, with leave to appeal to the Appellate Division.

'• Lydon and Callahan, JJ., concur; Levy, J., dissents with memorandum.