
    Arthur Byrd, Respondent, v. B. F. Keith Corp. R. K. O. Temple Theater, Appellant. Mary Byrd, Respondent, v. B. F. Keith Corp. R. K. O. Temple Theater, Appellant.
    County Court, Monroe County,
    October 17, 1945.
    
      Abraham G. Francis for respondents.
    
      Melvin H. Zurett for appellant.
   Rosenberg, J.

These are appeals from orders made in the City Court of Rochester denying the motions of the defendant for judgment dismissing the complaints of the plaintiffs for failure of the plaintiffs to prosecute the causes of action with due diligence.

In the above-entitled actions, the complaints were served in August, 1942. The answers were filed in September, 1942. Thereafter, the actions were placed on the generally reserved calendar of the City Court. In July, 1945, the defendant moved to dismiss the complaints by reason of the failure of the plaintiffs to prosecute their causes of action with due diligence. The motions to dismiss were denied and the several cases were placed on the September calendar with the notation of the judge sitting at Special Term that if not tried at that time, by reason of plaintiffs’ failure to prosecute, each of the cases was to be dismissed. It is the appeals from these orders which are now before this court for determination. The conduct of the calendar in City Court and the orders which were made in this action are wholly within the discretion of the judge in City Court and in the absence of an abuse of the use of his discretion such orders are not appealable.

In view of the fact that the said orders are intermediate orders and do not finally dispose of the issue, this court is without jurisdiction to entertain the appeal, despite the ingenious argument of counsel for the defendant concerning the finality of such an order.

Accordingly, the several appeals are hereby dismissed.  