
    Thomas J. Loftus, Respondent, v. Myron H. Oppenheim and Wales F. Severance, Appellants.
    
      Failure to file a note of issue — when not sufficiently explained to'justify the case " being placed upon the calendar.
    
    Upon a motion to relieve the plaintiff in an action from the consequences of his failure to file a note of issue' and to place the case upon the calendar in the position it would have occupied had the note of issue been filed, an affidavit of an attorney was produced, in which the affiant stated that he was in charge of the office of the plaintiff’s'"attó'niéy 'at the time the noté of issue should have been filed, the plaintiff’s attorney being then in Europe; that he-instructed a ■ clerk in the office to file the note of. issue, .but that the clerk had neglected to do so.
    The name of the clerk was not given, nor was any reason stated for the failure to produce an affidavit of the clerk showing how the omission occurred.
    
      Held, that the motion should-not have been granted.
    Appeal by the defendants, Myron H. Oppenheim and another, from an order of the Supreme Court, made at Chambers, and bearing date the 4th day of March, 1903, permitting the plaintiff to file a note of issue and placing the cause upon the general calendar for trial.
    
      S. Livingston Samuels, for the appellants.
    
      Max D. Steuer, for the respondent.
   Per Curiam :

On the 4th of March, 1903, an order was made on plaintiff’s motion that this cause be placed upon the general calendar of this court in the position it would have occupied had a note of issue been filed prior to the first Monday of October, 1902, and defendants have appealed.

The basis of the order is an affidavit of an attorney who states that during the summer of 1902 he had charge of the office of plaintiff’s attorney, who was absent in Europej and that owing to the vast amount of business which he had under his supervision he instructed a clerk in the office to file a note of issue in all Cases then pending and undetermined and that he had only recently dis-covered that the clerk had failéd to do as he was told and by ■reason thereof a note of issue was not. filed and this case was not placed on the. general calendar. The name of this clerk is not given, nor are any facts stated from which it can be seen that the failure to file the note of issue to place the cause upon the calendar was due to his inadvertence, other than the statement of the attorney, A sufficient excuse, therefore, was not presented to justify the court in making the order appealed from. (Hix v. Edison Electric Light Co., 78 App. Div. 384.) Something more must be shown to justify such an order than the neglect of a clerk in the office, whose name is not given or. any reasons stated why an affidavit is not presented by him showing how such omission occurred.

The order appealed from, therefore, must be reversed, with ten dollars' costs and disbursements, and the motion denied, with ten dollar's costs.

. Present — Van Brunt, P. J., Patterson, O’Brien, McLaughlin and- Laughlin, JJ.

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