
    Ignatz Weiss et al., Respondents, v. Joseph B. Morrell et al., Appellants.
    (New York Common Pleas—General Term,
    March, 1894.)
    A notice of trial was served in December, 1893, for the 2d day of January, 1893. Held, that the latter date was clearly a clerical error, which might be waived by the party receiving the notice, and that it was waived by retention of the notice without objection.
    The provisions of the Code as to preferences are not exclusive, and do not prohibit courts from establishing a calendar for short causes.
    Where the decision upon a motion to place a case on the short cause cal-1 endar is riot made in time for a trial on the date named in the notice of motion, it is proper to fix a later date.
    Appeal from the affirmance, by the General Term of the City Court, of an order advancing a cause to the short cause calendar, and from an order denying a resettlement thereof, and from an order denying a motion to strike the case both from the special and general calendar of the court.
    
      Charles Edward Souther, for appellants.
    
      Alfred B. Jaworower and Louis Lowenstei/n, for respondents.
   Daly, Ch. J.

A notice of trial was served by plaintiffs’ attorney upon the defendants’ attorney on the 23d of December, 1893, for the 2d day of January, 1893. The latter date was obviously a clerical error, and the defect might be waived by the party receiving the notice; and in this case it was waived because the notice was retained. If defendants intended to object to the irregularity they should have returned the paper with a notification of their reasons, and then a proper notice of trial could have been served. By retaining the paper they must be deemed to have regarded it as a sufficient notice, and in that case it was a notice for the coming January, as it would not have been a sufficient notice for a past date. The case was, therefore, properly on the general calendar, and might be placed upon the special calendar for short causes.

The appeal is mainly argued on the question as to whether the courts of this state have power to appoint a short cause calendar and place causes, thereon for trial out of their order Upon the general calendar. It is claimed that this is giving a preference to certain causes not enumerated in the statute of preference. Code Civ. Proc. chap. 8, title 6, art. 2. The provisions of the Code are not exclusive, and do not limit the power of the courts over their calendars, nor consequently prohibit the establishing a calendar for short canses, according to the practice of all the courts long before the adoption of the present Code. The general rules of practice under which such summary trials are had are not inconsistent with any provision of the Code; for since the statute recognizes the propriety of granting certain preferences, the granting of a preference in any other special case is entirely consistent with, the statutory provision. The short cause rule is also attacked upon the ground that the right to move under it is confined to the plaintiff, to the exclusion of a defendant who has pleaded a counterclaim and who is entitled to all the remedies of a plaintiff. As the defendants here do not set up a counterclaim it is not necessary to discuss this point. It by no means follows, however, that under the rules of the-City • Court, or of the other courts, a defendant with a counterclaim" would not be allowed to move for the short cause calendar.

Ho injury was done to the defendants by the entry of the order setting the cause down for the fourth instead of the second of January, which latter date was that specified in the notice. The decision upon the motion not having been rendered in time for a trial upon the latter date (owing to the rule which requires that the order be filed with the cleric at least two days before the day on which a case shall be entered on the special calendar) it was proper to fix a later date. As defendants had notice of such date they were not injured, and their motion to resettle the order and to strike the cause from the special calendar was properly denied.

These appeals involve a mere question of procedure in the City Court and do not affect any substantial right or the merits. In such case this court wfill not interfere. Waters v. Curtis, 13 Daly, 179; Whitney v. Townsend, 67 N. Y. 40.

The orders appealed from should be affirmed, with costa and disbursements.

Bischoff and Pryor, JJ., concur.

Orders affirmed, with costs and disbursements.  