
    Doctors Service Corps, Inc., Plaintiff, Appellant, v. Bern Budd, Defendant, Respondent.
    Supreme Court, Appellate Term, First Department,
    November 18, 1924.
    Municipal Court, city of New York — motions and orders — court lacks power to deny motion to restore for trial calendar case on “ reserved generally" calendar — denial of motion for order to restore action to calendar of Municipal Court of city of New York for trial deemed proper exercise of discretion and not appealable.
    The Municipal Court of the city of New York is without power to deny a motion to restore for trial a case on the “ reserved generally ” calendar of that court.
    However, the denial of plaintiff’s motion to restore a case to the calendar of the Municipal Court of the city of New York for trial was proper and not appealable, where it appears clearly from the record that the order was a proper exercise of the court’s discretion in controlling the affidavits received by it.
    Appeal by plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, denying plaintiff’s motion for an order to restore this action to the calendar for trial with leave to renew upon proper papers and the payment of ten dollars costs.
    
      Morris P. Schaffer (Howard C. Lake, of counsel), for the appellant.
    
      Budd & Coffey (Harold J. Cloutman, of counsel), for the respondent.
   Per Curiam.

The denial of a motion to restore for trial a case on the “ reserved generally” calendar has been held to be an order that the Municipal Court has not the power to make and is, therefore, appealable. Rossmann v. Serventi, 177 N. Y. Supp. 855. The motion under consideration in that case was denied without terms or qualifications. The instant order appears clearly from the record to have been a proper exercise of the court’s discretion in controlling the nature of affidavits received by it. For that reason the order was a proper one, and, therefore, not appealable.

Appeal dismissed.

All concur; present, Gut, Bijur and Mullan, JJ.  