
    Birdsey-Somers Co., Respondent, v. Mae Sleeper, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1912.)
    City Court of city of New York — powers — pleading — calendar—■ Code of Civil Procedure, §§ 791, 793.
    Where a trial in the City Court of the city of New York occupies more than two hours, the court in its discretion may either hear the cause through or send it to the foot of the general calendar, but is not authorized to set the case down for any particular day.
    Where it does not appear from the pleadings in a City Court action that the status of the parties or the issues involved bring the case within section 791 of the Code of Civil Procedure, and, where neither notice of preference was served with the notice of trial nor an application upon notice made for an order preferring the case under section 793 of said Code, the court is not justified under section 791 in setting the case down for any particular day.
    Appeal by defendant from that portion of an order of the City Court of the city of Mew York which provides that the case be set down on the day calendar of the court to be called for trial in Trial Term, Part One, on the 9th day of March.
    
      Waldo G-. Morse, for appellant.
    Daniel D. Sherman, for respondent.
   Bijub, J.

This case was duly placed on the short cause calendar of the City Court, but, as .the trial greatly exceeded two- hours and was still unfinished, the court announced that it would make an order putting the case “ on the long, cause calendar for some day the next week,” to which the defendant duly objected. Thereafter the order appealed from was signed, restoring the case to the general calendar and setting it down for the 9th day of March, 1912.

By Bule II of the City Court, “ If the trial shall actually occupy more than two- hours, the court may, in its discretion, send the cause to the foot of the general calendar.” This does not permit the court to set the case down for any particular day on the general calendar, as such a disposition may well bring the cause on for trial ahead of younger issues. The discretion vested in the court is either to hear the case through, or to send it to the foot of the general calendar. There is nothing in section 791 of the Code to justify this preference by the court. It does not appear from the pleadings that the status of the parties to the action, or the issues involved, bring the case within that section, nor was a notice of preference served with the notice of trial or an application upon due notice made for an order preferring the case as provided in section 793 of the Code.

The order, so far as appealed from, must, therefore-, be reversed, with ten dollars costs and disbursements and the case restored to the foot of the general calendar as of the date of the mistrial.

Seabuky and Lehman, JJ., concur.

Order, so far as appealed from, reversed.  