
    John Fiesel, an Infant under the Age of Fourteen Years, by Susan Fiesel, His Guardian ad Litem, Appellant, v. White Sewing Machine Company, Respondent.
    First Department,
    October 22, 1909.
    Practice — calendar, Trial Term, first judicial department — prior engagement of attorney —• when case should not be sent to foot of general calendar.
    Where a case in the first judicial department has been sent to one part of the Trial Term for trial, and the attorney has been directed to proceed, he is actually “engaged ” in the trial of the cause within the meaning of rule 7, although a jury has not yet been impaneled.
    Hence, where he had another cause on the day calendar of another part of the Trial Term, it should not be sent to the foot of the general calendar because he was unable to attend the .trial by reason of the other engagement, and, if passed, it should be restored to the day calendar if it had not been passed for three days, or for any day because of other engagements.
    Appeal by the plaintiff, John Fiesel, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 16th day of June, 1909, denying the plaintiff’s motion to restore the case to the day calendar after it had been sent to the foot of the general calendar, in an action for personal injuries.
    
      I. Henry Harris, for the appellant.
    
      Marshall B. Clarke of counsel [Clarke & Lyon, attorneys], for the respondent.
   Clarke, J.:

This case appeared upon the Ho. 2 day calendar, called in Trial Term, Part VIII, on May 18, 1909, and was Ho. 55 thereon. On May nineteenth it was Ho. 26 on said calendar and was answered ready by both sides, and the plaintiff held his witnesses throughout that day. On May twentieth it was Ho. 18 and was answered ready on the call.

On May twentieth the plaintiff’s attorney had another case on the Ho. 1 calendar called in Trial Term, Part III, which was Ho. 1 thereon ; the justice presiding at the calendar, Part III, assigned the case Ho. 1 on his calendar to Part IV for trial and the attorney and his witnesses under such direction appeared before the trial justice at said part. A case on trial before him was not quite concluded and he directed the parties to appear before him at two o’clock when it would be taken up. At said time he requested the pleadings to be handed up, and directed the attorney to start his case, but a jury had not actually been impaneled.

The attorney, relying upon his assignment to Trial Term, Part IV, had at about half-past eleven discharged his witnesses for the day in the Eiesel case. After the handing up of the pleadings and the direction to start his case in Part IV, the attorney was informed that his case which was Ho. 18 on the Ho. 2 calendar in the morning had been called for trial at two o’clock in Part VIII. He appeared before the justice there presiding and stated the situation. The justice inquired if a jury had been actually impaneled in Part IV, and being in formed that it had not, refused to pass the case and sent it to the foot of the general calendar. Thereafter plaintiff moved for an order restoring the case to the day calendar, which was referred to the calendar justice who had presided at Part VIII, by whom the motion was denied, and from the order entered thereon this appeal is taken.

Buie 6 of the “ Buies for the Begulation of the Trial Terms of the Supreme Court in the .First Judicial District and to regulate the calendar practice therein,” provides for three separate day calendars which shall be called respectively in Trial Terms, Part III, Part VIII and Part XIV. It further provides for the trial parts to which cases shall be sent from each of said day calendars. It also provides: “ Ho application to postpone the trial of a cause shall in any ease be entertained after such cause has been sent to a part for trial.” Rule 7 provides that In a cause upon a day calendar for trial where it shall appear to the court by affidavit that counsel who is to try the same * * * is actually engaged in the trial of a cause in a court of record in the' counties of Mew York or Kings, the cause shall be passed for the day or until such argument or trial is concluded, unless the trial in which the counsel is engaged is a protracted one.” Rule 8 provides that “ In no event shall a cause on the day calendar be passed from day to day on account of the engagement of counsel for more than three days. Mot more than two causes shall be held ready on the day calendar for one counsel in addition to the cause in which he is engaged.”

When the justice presiding at Trial Term, Part VIII, called his calendar for the second time at two o’clock the plaintiff’s attorney was then actually engaged in Part IV, to which part he had been sent in the morning and came within that portion of rule 6 which says : “Mo application to postpone the trial of a cause shall in any case be entertained after such cause has been sent to a part for trial.” His case in Part VIII had not been passed for three days or for any day upon the ground that he was engaged elsewhere. By the order of that presiding judge to proceed before him with the case at bar or else be sent to the foot of the calendar, the situation presented itself that if the attorney obeyed that instruction, the complaint in his case actually theretofore assigned in Part IV would have been dismissed or the cause sent to the foot of the calendar by reason of the rule forbidding.an adjournment after an assignment to a trial part.

We do not think, under the circumstances, that the attorney should have been forced to elect the case in which he should suffer this penalty. The rules are made to facilitate the business of the court, but the rights of litigants should not be sacrificed by a strained interpretation thereof. Reading these rules together, it is clear, when a rule provides that after a cause has been sent to a part for trial, no application to postpone the trial of the cause shall in any case be entertained, that after a cause has been assigned to a part for trial, the attorneys engaged in such cause are actually engaged in the trial of a cause as provided in rule 7. The infant plaintiff should not be compelled to suffer the hardship of the delay incident to the sending of his cause to the foot of the general calendar upon the facts here presented.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to restore the cause to the day calendar granted, with ten dollars costs.

Ingraham, Lahghlin, Houghton and Scott, JJ., concurred.

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