
    Isaac Polstein, Respondent, v. General Accident Fire and Life Assurance Corporation, Limited, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1915.)
    Motions and orders — motion to put case on short cause calendar — pleading — motion to vacate order.
    Where on motion to put a ease on the short cause calendar the moving affidavits state that plaintiff would need but one or two witnesses; and the opposing affidavits claim that the defense would require ten or twelve witnesses, but neither side showed what was expected to be proved by their witnesses, nor the probable duration of their testimony, but the court with the pleadings before it could consider the nature of the action and the character of the defense as well as the affidavits, it is a matter of discretion to determine whether or not the ease could be tried within the two-hour time limit.
    Where, at the time said motion was made, a motion by defendant to compel plaintiff to serve a reply to certain defenses was undetermined, and no order in reference thereto had been made or entered, an order granting the motion to put the cause on the short cause calendar was -not prematurely made.
    An order granting defendant’s motion to compel plaintiff to serve a reply to certain defenses properly provided that the issues remain as of the original date, the ease to retain its position on the calendar.
    Where plaintiff, in the erroneous belief that his motion to put the case on the short cause calendar had been prematurely granted, moved to vacate it, and it was vacated on payment of costs and disbursements, a further order placing the case on the short cause calendar was improperly granted, no order having been entered on plaintiff’s motion to put the case on the short cause calendar.
    Pendleton, J., dissents.
    Appeal from two orders of the City Court of the city of New York. The facts appear in the opinion.
    Joseph L. Prager (Abram Silverman, of counsel), for appellant.
    House, Grossman & Vorhaus (Leo J. Rosett, of counsel), for respondent.
   Guy, J.

This action is brought upon a policy of insurance to recover for the value of jewelry, alleged to have been stolen from plaintiff’s premises on March 15, 1914. The first appeal in this case was taken, on February 25, 1915, and is an appeal from an order made on February 23, 1915, which placed the trial of the action upon the short cause calendar of the City Court, and the notice of appeal also brings up for review so much of an order entered o.n -the 24th day of .February, 1915, as provided, upon a motion made by defendant to compel- plaintiff to reply to certain defenses, that the issues remain as of the original date, and that the case retain its position, on the calendar. The.facts are as follows: On February 19, 1915, the defendant moved for an order compelling plaintiff to reply to certain separate defenses set up in the answer. This motion was returnable on February twenty-fourth. Later, and on the same day, the plaintiff moved for an order placing the case on the short cause calendar. Plaintiff’s motion was returnable on February twenty-third, one day prior to the return of the defendant’s motion. Plaintiff’s motion was granted and an order entered on February twenty-third, placing the case upon the short cause calendar for trial. The following day the defendant’s motion to compel plaintiff to reply was granted and the following order entered: “ Upon the foregoing papers this motion is granted, reply to be served within six days after service of a copy of this order with notice of entry thereof. Issue to remain as of original date and case to retain its position upon the calendar.” It is urged upon the part of the appellant that the order failed to show with reasonable certainty that the case was one which could be tried within two hours. The moving affidavits, after setting forth the cause of action and the nature of the defenses, states that the plaintiff will need but one or two witnesses, and the defendant’s opposing affidavits claim that the defense will require ten or twelve witnesses. Neither side showed what they expected to prove by their witnesses or the probable duration of their testimony, but the court below had the complaint before it and could consider the nature of the action and the character of the defense as well as the affidavits, and we cannot say that it abused, the discretion given it to determine whether or not the case could be tried within the limit •prescribed. The appellant also alleged that the order was prematurely granted, as at the time the same was made there was a motion pending, returnable the next day, for an order, compelling the plaintiff to file a reply to certain defenses set up in the answer. There is no force in this contention. The motion made to compel plaintiff to reply did not in itself operate as a stay, prohibiting the court from ordering the case upon the ■'short cause calendar. The granting of that motion •was discretionary (Code Civ. Pro. § 516), and when ’the order of February twenty-third was made the motion of defendant to compel plaintiff to file a reply had not been heard or determined, and no order in ■reference thereto had been made or entered. . Thfe court below was also well within its rights in providing in the order of February twenty-fourth, the issues to remain as of original date and case to retain its position on the calendar.” If when the case had been reached for trial the issues had not then been fully joined, that would have been a compelling reason either for further delay of the trial or in support of a motion to vacate the order of February twenty-third. Both the orders were properly made, and consequently the order appealed from should be affirmed as well as that portion of the order of February twenty-fourth brought up for review. The second appeal is also by defendant and is from a second order placing the case upon the short cause calendar and also Vacating a stay previously granted, staying plaintiff from proceeding with the trial until the hearing of the appeal from the first order above considered. The second order was made under the following circumstances. The plaintiff erroneously believing that the order of February twenty-third placing the case upon the short cause calendar had been prematurely granted, on March 8, 1915, moved for an order vacating the order of February twenty-third aforesaid, and vacating the stay pending the appeal from that order, and also for an order placing the case upon the short cause calendar. This order was returnable on March 15,1915, before the justice who made the first order of February twenty-third. Upon the- hearing of this motion the justice made a memorandum upon the papers as follows: Motion granted upon payment of disbursements and costs to March 8th, 1915.” The justice made another memorandum referring the motion to short cause the case to another justice, who was then sitting in the part where such motions are heard and on the same day, March fifteenth, this latter justice made an order as follows: Case ordered advanced to short cause calendar for March 22nd, 1915. The stay contained in the order of March 1st, 1915, is vacated.” We need not consider the merits of the order vacating the stay as at this time that is of no importance. It is clear, however, that the second order placing the case upon the short cause calendar was improperly granted. No order vacating the first order of February twenty-third appears to have been entered, and all that appears in the record is the memorandum above referred to granting the motion to vacate upon payment of costs and disbursements, so that, at the time the order of March fifteenth was entered, the order of February twenty-third was in full force and effect. No order had been entered vacating it and none appears in the record. All that had been done was an indorsement upon the papers made by the justice who originally made the order, to the effect that the motion to vacate it would be granted upon payment of costs and disbursements. Undoubtedly the justice who made the original order had power to vacate it, but at the time the second order was made that power, although evidently exercised, had not ripened into a valid and enforcible order, and consequently, as before stated, when the second was made the original order was in. force. It is stated in appellant’s brief that on March seventeenth, which it will be seen is two days after such order appealed from was made, an order vacating the first order was entered, and that this order directed the payment of costs, etc., but not as a condition for granting it. Assuming this to be true, it could have no effect upon the determination of these appeals, as they must be decided upon the record as it comes before us. It might he urged with some force that the making of the second order appealed from violated no substantial right of the appellant, as the first order being valid the situation was not affected hy the second one, hut this order is upon the record and orderly practice requires that it should not be allowed to stand. If an order has been entered vacating the first order placing the case upon the short cause calendar, the foregoing disposition of these appeals leaves the case upon the trial calendar but not upon the short cause calendar. The plaintiff, however, is responsible for this situation by reason of the procurement of the vacation of a perfectly valid order short causing the case.

Order of February 23, 1915, and that portion of the order of February 24, 1915, appealed from affirmed, with ten dollars costs and disbursements. Order of March 15, 1915, so far as it orders the case upon the short cause calendar, reversed, with ten dollars costs and disbursements, and so far as it vacates the stay of March first affirqied, without costs. Costs and disbursements of one party to be offset against those of the other.

Bijur, J., concurs.

Pendleton, J.

(dissenting). I dissent from so much of the opinion herein as reverses the order of March fifteenth, putting the case on the short cause calendar. The only objection to the order seems to be that another similar order had not been actually vacated, although a decision that it should be had been made. Even if an order on this decision vacating the order of February twenty-third were never entered, the only result would be two orders- to the same effect in the records. ' No possible injury could be thereby occasioned any one. The only result of reversing will be to necessitate another motion to take up the time of the court unnecessarily and impose further expense on the litigants.

Both orders appealed from- should be affirmed, with costs and disbursements.

Orders of February, 1915, affirmed, with costs.

. Order of March 15,1915, reversed, with costs, so far as it orders the case upon short cause calendar, and so far as it vacates the stay of March 1, 1915, affirmed, without costs.  