
    Uvalde Asphalt Paving Company, Respondent, v. Thomas J. Dunn, Appellant.
    
      A reasonable doubt whether a case can be tried within two hours is a sufficient ground for not gutting it on the short cause calendar.
    
    Rule 5 of the Rules for the Regulation of Trial Terms in the First District, authorizing the placing of cases upon the short cause calendar, where “it satisfactorily appears by affidavit and the pleadings that the trial of the action will not occupy more than two hours, and that no good reason exists why the same should not be promptly tried,” contemplates that a case shall not be placed upon the short cause calendar unless it appears, with reasonable certainty, that the trial thereof will not occupy move than two hours, and where the justice, before whom the motion is made, entertains a “reasonable doubt ” whether the action can be tried within that time, he should deny the motion.
    Appeal by the defendant, Thomas J. Dunn, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of November, 1902, placing the cause upon the short cause calendar.
    
      Jacob Marks, for the appellant.
    
      Granville Whittlesey, for the respondent.
   Laughlin, J.:

The plaintiff obtained a contract from the city of New York, through its department of highways, for paving the roadway of Eighth street from Broadway to McDougall street, including furnishing and setting new curbing and redressing and resetting old curbing. It sublet to the defendant that part of the work relating to new and old curbing, including the work of taking up “ paving stone and doing all excavating that may be necessary for said curb setting.” The action is brought for a breach of the defendant’s contract to perform this work in such a manner as not to render the plaintiff liable for damages. Damages have been recovered against the plaintiff, for which it seeks to hold the defendant. The plaintiff alleges that the defendant had notice of the action brought against it, and that the same was defended at the request of the defendant. The defendant denies these allegations and disputes his liability. If the defendant should not be bound by the judgment recovered against the plaintiff, all questions relating to the negligent construction of the work and the amount of damages will have to be litigated anew. Thus, although an action on contract, it may involve the trial of a question of negligence and of unliquidated damages. The moving affidavits indicate that the issue can be tried in two hours, but this is controverted by the opposing affidavits; and it is extremely doubtful whether the issues can be thus tried. The learned justice who granted the motion says in a memorandum opinion that there is “ reasonable doubt ” whether the action can be tried within two hours.

This court has frequently expressed its reluctance to interfere with the discretion of the trial courts in granting or denying motions of this character; but it is manifest that this case should not be placed on the short cause calendar. The rule (Rule 5 of the Rules for the Regulation of Trial Terms, First Judicial District) only authorizes the placing of cases on the short cause calendar where, upon the application, it satisfactorily appears, by affidavit and the pleadings that the trial of the action will not occupy more than two hours, and that no good reason exists why the same should not be promptly tried.” Where there is reasonable doubt whether a case can be tried in two hours it cannot be said that it satisfactorily appears ” that the trial will not occupy more than two horn’s. In exercising the authority conferred by this rule consideration must be given to the congested condition of the Trial Term calendar and to the rights of the party opposing the motion. Other litigants should not be delayed in the trial of their cases by fruitless attempts to try issues as short causes which cannot be tried within the time limited by the rule. Moreover, the party opposing the motion should not unnecessarily be put to the trouble and expense of preparing for two trials, or subjected to any great risk of the cause being sent to the foot of the calendar and the trial of the issues thus delayed for a period of two years or more. This rule contemplates that it should appear with reasonable certainty that the trial of the case will not occupy more than two hours, and not that a case shall be ordered upon the short cause calendar, where there is reasonable doubt as to whether it can be-tried in that time.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Van Brunt, F. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

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