
    Max Willner, Plaintiff, v. The Mink Restaurant Company, Defendant.
    (City Court of New York, Special Term,
    August, 1908.)
    Calendar — Right to go on calendar — Validity of rule imposing conditions.
    Dismissal — Grounds and defenses — Failure to proceed — Excuses generally— Unauthorized court rule.
    The City Court of the city of New York had no power, upon ordering a new calendar, to make a rule requiring new notes of issue of causes then regularly on the calendar to be filed and. providing that in default thereof such causes should be omitted from the new calendar, as such rule was in contravention of section 977 of the Code of Civil Procedure.
    Accordingly, where a cause was on the calendar when such rule was adopted but was omitted from the new calendar in pursuance thereof, where plaintiff moved to restore such cause to the calendar and the motion was denied with leave to renew, and, although plaintiff neglected to renew such motion and filed a new note of issue for a later term, thereby abandoning bis original note of issue and delaying the trial of the cause, when it appears plaintiff acted in good faith, a motion to dismiss the cause for want of prosecution should be denied on plaintiff’s paying ten dollars costs of the motion and ten dollars costs of the former motion; otherwise the motion to dismiss should be granted.
    Motion to dismiss complaint.
    Harry M. Wilner, for plaintiff.
    Reno R. Billington, for defendant.
   Finelite, J.

This is a motion to dismiss the complaint for want of prosecution. Issue was joined on October 18, 1905, and both parties noticed the action for trial for the term commencing the first Monday of November, 1905, for which term a note of issue had been filed by the plaintiff. The action remained on the calendar of this court until October, 1906, when it was not included in the new calendar then made up pursuant to the rule adopted by the justices of this court in June, 1906, which rule is as follows: Ordered that the Clerk of the City Court of the City of New York make a new calendar of the trial issues for October, 1906. Causes noticed for the first time for the October term shall follow on the General Calendar according to the dates of issue: No action upon the General Calendar shall be placed upon the new calendar unless a note of issue — for which no fee will be charged — be filed with the clerk from July 1, and on or before the first day of September, 1906, stating that the same has not been disposed of or settled and specifying thereon the date of issue and the number on the present calendar. * * * And no cause on the present calendar shall retain its place upon the new calendar unless such note of issue above mentioned be filed prior to the date above stated. And no orders shall be issued restoring to its place on the calendar any cause for which a new note of issue has not been filed on or before the above date. The call from such new calendar to commence with the cause next succeeding on the present General Calendar the cause last reached in June.” “Adopted in convention, June 1, 1906. Thomas F. Smith, clerk.”

Plaintiff failed to comply with the direction contained in said rule, and did not file a “ new note of issue,” and his action was therefore not placed upon the new calendar of issues made up to be tried commencing October, 1906, and has since then not been restored to said calendar. A motion to so restore having been denied, with ten dollars costs, with leave to renew, said motion was not renewed, but plaintiff filed another note of issue during May, 1907, paying therefor an additional fee. The defendant now moves to dismiss upon the ground that the plaintiff has unreasonably delayed in prosecuting this action; that he has failed to bring his action to trial according to the course and practice of this court; that younger issues have been tried in their regular order and disposed of. This presents the question whether plaintiff moved with reasonable promptness to have his action tried. The issues presented by the pleadings were placed upon the calendar and noticed for trial with due diligence, and should have been included in the new calendar made up in October, 1906, notwithstanding plaintiff’s failure to file the “ new note of issue ” required by said rule, and should have remained upon the calendar until disposed of. Section 977 of the Code of Civil Procedure provides that “ in the county of New York * * * where a party has served a notice of trial, and filed a note of issue for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial, or file a new note of issue for a succeeding term; and the action must remain on the calendar until it is disposed of.” This court has power to make rules governing the conduct of its business, and the regulation of its calendar within limitations (Hammond v. Shaffer, 30 N. Y. St. Repr. 831), but it is without power to make any rule which is inconsistent with the provisions of the Code of Civil Procedure (Code Civ. Pro. § 323; Gormerly v. McGlynn, 84 N. Y. 284; Sayer v. Kirchof, 3 Misc. Rep. 245), and a rule requiring the films’ of a “new note of issue ” falls within this inhibition, as it creates a change in the practice inconsistent with section 977. This latter section expressly provides that “ * * * it is not necessary for him to serve a new notice of trial, or file a new note of issue for a succeeding term; and the action must remain on the calendar until it is disposed of.” And to require the plaintiff, in order that his action “ remain on the calendar until it is disposed of,” to file an additional “ note of issue ” is an attempt to alter and in effect annul said provisions of said section (which calls for but one note of issue). Its vice is that “it is inconsistent with the provisions of the Code.” Code Civ. Pro., § 323; Gormerly v. MeGlynn, supra; Rauchberger v. Interurban St. R. Co., 52 Misc. Rep. 518. The plaintiff, abandoning his first note of issue, and filing a second for the May, 1907, term, and proceeding thereunder, has delayed the trial of this action. However, in view of his apparent good faith, the motion to dismiss will he denied upon payment by the plaintiff of ten dollars costs of this motion, and the ten dollars costs of the former motion (if same be still unpaid, which I understand to he the case) before September first, and if terms are not complied with this motion will he granted.

Ordered accordingly.  