
    Isaac N. Miller, Appellant, v. Robert D. Douglas, Respondent.
    First Department,
    October 21, 1910.
    Practice — striking cause from special calendar, First Judicial District.
    Where, pursuant to subdivision S of rule 5 of the Rules regulating Trial Terms of the Supreme Court in the First Judicial District, a cause has been placed upon the special calendar for trial, another justice subsequently sitting in the same part of the court cannot strike the cause from the special calendar and restore it to the general calendar. Such order is reviewable, if at all, by the Appellate Division.
    Appeal by plaintiff, Isaac bT. Miller, from an order of the Supreme Court made at the blew York Trial Term and entered in the office of the clerk of. the county of blew York on the 23d day of May, 1910, denying an application 'to. restore the cause to the special calendar for trial.
    
      
      Jacob Landy, for the appellant.
    
      Charles H. Tuttle [Julien T. Davies and Herbert Barry with him on the brief], for the respondent.
   Per Curiam :

At the first term at which this cause was placed upon the general calendar upon five days’ notice to the defendant, and upon proof of the facts upon which ,the cause of action was based, the plaintiff applied to the justice holding Part II of the Trial Term for an order placing said cause upon the special calendar for trial, under subdivision 2 of rule 5 of the Rules for the Regulation of the Trial Terms of the Supreme Court in the First Judicial District and to Regulate the Calendar Practice therein. Said motion was opposed but was granted by the court.

Thereafter the defendant moved for reargument which was duly had, but upon the reargument the court confirmed its previous action and by order, entered March 18, 1910, the case was placed upon the special calendar, Part II, Trial Term, for trial. It subsequently appeared upon the day calendar in said part and was for a number of days answered ready by both sides. A jury was finally impanelled and counsel for the plaintiff made the opening address to the jury. Thereupon the justice then presiding at said Trial Term, Part II, struck the case from the special calendar for trial and ordered it restored to the general calendar. Thereafter the plaintiff made a motion before said justice to restore the cause to the special calendar for trial, which having been denied, plaintiff appeals.

The cause was not put upon the special calendar for trial on the ground that it was a short cause and could be tried within two hours, but upon the grounds set forth in the subdivision of the rule hereinbefore alluded to, upon a litigated motion after realignment and upon due deliberation by the justice presiding at the said Trial Term part when the motion was made. The order so made was not subject to review or reversal by another justice subsequently sitting in the same part of the court. It was a court order and could only be reviewed, if at all, by the Appellate Division.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to restore the cause to the special calendar at Trial Term, Part II, for trial should be granted, with ten dollars costs.

Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  