
    Margaretha Mayer, as Administratrix, etc., of Frank Mayer, Deceased, Appellant, v. James McWalters, Respondent, Impleaded with Others.
    
      Practice in the first department— special rule 5 applies to cases on the preferred, as well as those on the general calendar — if the case is marhed ready an engagement of counsel at the Appellate Division is not an excuse—restoring the case to the calendar.
    
    Buie 5 of the Special Buies of Practice in thefirst department, providing that “ in a case upon the day calendar for trial where it shall appear to the court by affidavit that counsel who is to try the case is to argue a cause * * * upon the day calendar of any Appellate Division of the Supieme Court * * * the case shall be passed for the day,” is a general provision applicable as well to cases upon the preferred' calendar as to those upon the general calendar.
    Where a case is marked ready at the call of the calendar of the trial court in the morning, and no suggestion is made of an impending engagement of counsel, • the case must be tried if it is reached on that day, unless some unforeseen contingency arises which makes it impossible to proceed.
    Where the plaintiffs counsel has announced his case on the preferred calendar of the Trial Term as ready, but when the case is reached upon the afternoon of the same day, he is' actually engaged in the argument of a cause before the Appellate Division which was upon the day calendar of the Appellate Division when he announced his case at the Trial Term as ready, the trial court, while justified in striking the case from the preferred calendar, may properly in its discretion, upon a motion being subsequently made for that relief, restore the case to the preferred calendar. ’ .
    Appeal by the plaintiff, Margaretha Mayer, as administratrix, etc., of Frank Mayer, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in the office, of the clerk of the county of New York on the 27th day of November, 1896, denying her motion to restore the cause' to the preferred calendar of the court.
    
      James J. Thornley, Jr,., and William P. Burr, for the appellant.-
    
      Samuel Cohn, for the respondent.
   Barrett, J.:

The affidavits show that, on November 20, 1896, this action was on the preferred calendar of the court, Trial -Term, Part 2;- that on that day it was marked ready upon the opening of the court in the morning; that it was reached for trial at half-past three o’clock in the afternoon, when the plaintiff’s counsel, was engaged in arguing an appeal before this Appellate Division, which was upon the day calendar of such division when the case was answered ready; and that these facts were then called to the attention of the learned justice presiding, for' the first time,. who refused to consider such engagement under the circumstances as an excuse,, and removed the case to the general calendar, apparently upon the ground that rule 5 of the special rules did not apply to the preferred calendar. We think that he erred in his construction of rule 5 of the Special Rules of Practice for the Regulation of -Trial Terms in this department. That rule provides: “ In a case upon the day calendar for trial-, where it shall appear to the court by affidavit that counsel who is to try the case is to argue a cause * * * upon the day calendar of any Appellate Division of the Supreme Court * ■ *’ * the case shall be passed for the day,” etc. This provision is a general oné, applicable as well to cases upon the preferred calendar as to those upon the general calendar. Mo particular day calendar is here specified. ' Hone is excluded. The paragraph immediately preceding referred specifically to causes upon the general calendar which had been “set down upon any Friday or Wednesday for trial.” But the rule was not exclusively devoted to the general calendar. It begins by giving the special deputy clerk assigned to Part 2 of the Trial Term “ charge of the general and preferred calendars herein provided for,” and proceeds to specify the duties of such clerk. The practice as to the preferred calendar is not specifically treated elsewhere; and the subsequent provisions of rule 5, which are general in their nature, apply to it as well as to the general calendar. If it had been intended to exclude preferred causes from-the benefit of the rule as to engagements of counsel, the previous specification as to cases set down upon any Friday or Wednesday for trial wonld-have been carried on into that branch of the rule in question. Instead of this, however, there is an independent provision commencing: In a case upon the day calendar for trial.” The consideration which this rule gave to the bar was not limited to any class of business. If that consideration was to be given at all, it was as essential in one part as in another; and the rule was certainly intended'to cover all the trial business of the court.

The rule requires the presentation of an affidavit showing the necessary facts. Mo such affidavit was produced; but none was required. When the fact of the engagement was brought to the attention of the learned trial justice he said : “ I cannot help that.” He then asked who had moved to place the case upon the calendar, and learning that it was the plaintiff, struck the_ case from the calendar. There was no pretense that the plaintiff’s counsel was not, in fact, actually engaged as stated. The learned justice made his ruling in view of what he believed to be his duty because said rule '5 did not apply to the preferred calendar. He directly decided that the case should be stricken from the preferred calendar.

The case being answered ready at the call of the calendar in the morning and no suggestion made of an impending engagement, the court was right in holding that the engagement subsequently entered into was no excuse.

' If parties answer ready at the call of the calendar in the morning without any -reservation, they should be ready when the case is reached on- that day, unless some unforeseen contingency arises meanwhile making it impossible to go on. '

Whilst the court, therefore, was justified in striking the case from the. calendar, we think, that, upon the motion subsequently. made,, based upon affidavits, it would have been a ■ proper exercise of discretion upon the exceptional facts disclosed to grant the motion to-restore.

The order should be reversed and the motion granted, but, under the circumstances, without' costs.

- Van Brunt, P, J., Rumsey, O’Brien and' Ingraham,. JJ., concurred.

Order reversed and motion granted, without costs.  