Poerschke v. Baldwin

This appeal is from so much of an order as directs that the cause be placed on the general calendar for trial at Trial Term, and alsa placing the cause under its proper number on the first call calendar of causes taken from the general calendar after the entry of the order.

The action is in ejectment. Both parties noticed the cause for trial at Special Term. The plaintiff subsequently moved that the case be stricken from the Special Term calendar and be sent to the Trial Term calendar. The motion was granted and a provision was inserted in the order to the effect that the clerk place it upon the Trial Term calendar as of its date of issue and that he place it on the first call calendar called thereafter; and it is from this provision of the order that the plaintiff has appealed.

The provision of the order appealed from was made without authority and contrary to the rules of practice. Under section 977 *285-of the Code of Civil Procedure a cause cannot be placed on the general calendar for trial until a notice of trial has been served and a note of issue has been filed. Here no notice of trial has been served or note of issue filed for the Trial Term, nor does the order contain any provision for the service of such notice or the filing of such note of issue. The provision, therefore, directing the clerk to place the cause on the Trial Term calendar as of its date of issue, and that he place it on the first call calendar thereafter, was not authorized by any of the provisions of the Code of Civil Procedure or rules of practice relating to this district. (Haskin v. Murray, No. 1, 29 App. Div. 370; Veinstok v. Veinstok, 63 id. 16.)

So much of the order, therefore, as is appealed from must be reversed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien, Ingraham and Laughlin, JJ., concurred.

Order reversed so far as appealed from, with ten dollars costs and disbursements.