Mellis Construction Corp. v. Schaefer

Appellate Division of the Supreme Court of New York

Mellis Construction Corp. v. Schaefer

253 A.D. 923, 2 N.Y.S.2d 308, 1938 N.Y. App. Div. LEXIS 9279

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 28, 1938

StatusPublished

Cited by1 cases

This text of 253 A.D. 923 (Mellis Construction Corp. v. Schaefer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mellis Construction Corp. v. Schaefer, 253 A.D. 923, 2 N.Y.S.2d 308, 1938 N.Y. App. Div. LEXIS 9279 (N.Y. Ct. App. 1938).

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Opinion

Action for breach of contract. Order of the City Court of Mount Vernon granting plaintiff’s motion to set aside the verdict in its favor for fifty dollars and ordering a new trial unanimously affirmed, with costs. The motion was made at the same term within the meaning of section 549 of the Civil Practice Act. Rule IV of the City Court of Mount Vernon specifies the beginning of the jury trial terms, but does not specify the concluding date. A fair interpretation, therefore, is that a trial term does not conclude until the beginning of the succeeding term unless it be in the meantime adjourned without date. The trial term during which this trial was had began, under the rule, on the second Monday of September, and that term, therefore, in the absence of proof of an adjournment, continued until the beginning of the next succeeding term, which is stated in the rule to be one which begins on the second Monday in November. Here the trial was had on September twenty-second and the motion to set aside brought on on October 26, 1937, under an order to show cause dated October 22, 1937. It was, therefore, timely. Present — Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ.

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Action for breach of contract. Order of the City Court of Mount Vernon granting plaintiff’s motion to set aside the verdict in its favor for fifty dollars and ordering a new trial unanimously affirmed, with costs. The motion was made at the same term within the meaning of section 549 of the Civil Practice Act. Rule IV of the City Court of Mount Vernon specifies the beginning of the jury trial terms, but does not specify the concluding date. A fair interpretation, therefore, is that a trial term does not conclude until the beginning of the succeeding term unless it be in the meantime adjourned without date. The trial term during which this trial was had began, under the rule, on the second Monday of September, and that term, therefore, in the absence of proof of an adjournment, continued until the beginning of the next succeeding term, which is stated in the rule to be one which begins on the second Monday in November. Here the trial was had on September twenty-second and the motion to set aside brought on on October 26, 1937, under an order to show cause dated October 22, 1937. It was, therefore, timely. Present — Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ.

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Bluebook (online)

253 A.D. 923, 2 N.Y.S.2d 308, 1938 N.Y. App. Div. LEXIS 9279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mellis-construction-corp-v-schaefer-nyappdiv-1938.

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