
    Max Willner, Appellant, v. The Mink Restaurant Company, Respondent.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Calendar — Right to go on calendar — Rule of City Court contravening statute.
    Dismissal — Grounds and defenses — Neglect to notice cause for trial — Second notice of trial required by invalid rule of court.
    A rule of the City Court of the city of New York, requiring a new note of issue to be filed upon making up a new calendar, and providing that in default thereof no action upon the general calendar should be placed upon the new calendar, is in contravention of section 977 of the Code of Civil Procedure and invalid.
    Where, in accordance with such rule, upon making up a new calendar a case on the general calendar was omitted therefrom for failure to file a new note of issue, and where thereafter the plaintiff filed a new note of issue and the cause was placed on the current calendar, but in the meantime younger issues were reached and tried, an order procured by the defendant, for that reason, dismissing the cause for want of prosecution, should be reversed.
    Appeal by the plaintiff from an order of the Oity Court of the city of 3STew York, granting defendant’s motion to dismiss the complaint for want of prosecution, upon terms.
    
      Harry M. Willner, for appellant.
    Reno R. Billington, for respondent.
   MacLean, J.

Issue of fact was joined herein October 18, 1905; the cause was placed upon the calendar, and both parties noticed the action for trial for the first Monday in ¡November, 1905. notwithstanding section 977, Code of Civil. Procedure, providing that, where in the county of ¡New York a party has served a notice of trial and filed a note of issue for a term at which it is not tried, the action must remain upon the calendar until it is disposed of, the making of a new calendar was ordered in the City Court for the October following; and it was ordained that “ no action upon the general calendar shall be placed upon the new calendar unless a note of issue * * * be filed * * * on or before the 1st day of September, 1906; and no orders shall be issued restoring to its place on the calendar any cause for which a new note has not been filed on or before the above date.” This was not complied with, and the cause was not put upon the new calendar. An application to excuse the oversight and place the cause upon the current calendar was denied. Then the plaintiff filed a new note of issue and got a new place for his cause on the current calendar. In the mean season younger issues reached trial. Stating this in an affidavit, and charging unreasonable delay, the defendant moved for and procured an order dismissing the cause for want of prosecution, unless the plaintiff paid costs of the motion to the defendant or his attorney. This is the order appealed from. It lays a penalty for noncompliance with a rule inconsistent with the statute. Mere failure to file the new note of issue did, legally, not remove the cause from or affect its place on the calendar governed by statute. Non constat, it would have been reached and tried long ago, save for the ultra vires rule. It does not appear that issues actually younger on the general calendar have been tried. Of course, relief must be had from such a posilion; and, as the plaintiff has chosen to put his cause upon the orderly, but irregular, calendar, he would better be let remain thereon awaiting his opportunity.

Gildersleeve and Seabury, JJ., concur.

Order appealed from reversed, with ten dollars costs and disbursements.  