
    Vito Trasselli et al., Respondents, v. Richard B. Allen, as Surviving Partner of R. H. Allen & Co., Appellant.
    (New York Superior Court
    General Term,
    October, 1895.)
    Where a case involving an equitable cause of action was marked off the Special Term calendar at a time when the court had no separate equity term, an order restoring the case to the calendar for trial should direct it to be placed on the equity calendar and not on the clerk’s calendar.
    Appeals by defendant from order directing the action to be placed upon the clerk’s calendar of this, court, and from order denying defendant’s motion to dismiss the complaint for unreasonable neglect on the part of the plaintiffs to prosecute the action and for judgment accordingly.
    
      Strong da Gadwalader (J. M. Wainwright, of counsel), for appellant.
    
      Vilo, Ruébsamen da Qoohran (Ernest E. Baldwin, of counsel), for respondents.
   Per Gwriam-.

Upon the facts presented no sufficient reason exists for disturbing the order denying defendant’s motion to dismiss the complaint for want of prosecution and for judgment accordingly. Upon all the facts disclosed there clearly was no abuse of judicial discretion. That motion having been properly disposed of, the plaintiffs had the right to have the case restored to the calendar.

The plaintiffs’ motion was, according to the, prayer contained in the affidavit upon which it was founded, that an order may be made herein restoring this action to the calendar for trial,” but in the notice of motion accompanying the said affidavit plaintiffs’ attorney asked “ for an order placing the above-entitled action on the clerk’s calendar.” The order-as entered provides “ that the case be placed upon the clerk’s calendar of this court.” As matter of fact the case had been noticed for trial at Special Term at a time at which there was no separate equity term in this court, and a note of issue had been duly filed, pursuant to which the casé had appeared upon the Special Term calendar, and the case liad been repeatedly called in its order upon said calendar, and after many adjournments had been marked off. Ro other notipe of trial had ever been given, nor any other note of issue filed,' except as stated. At the time of the motion the court, under its rules, had a separate equity term and the equity calendar had taken the place of the former Special Term calendar. Under these circumstances the case should have been ordered to be placed upon the equity calendar. On the other hand, an inspection of the complaint shows that it proceeds upon two causes of action, the first being one at - law apd the second being an equitable one. The - consequence is that if the defendant has not already waived his right to have the common-law action ti-ied by a jury, as to which the record is not clear, and at the proper time and in the proper manner should 'insist upon a jury trial of that part of the case, that branch of the litigation would have to be sent to a jury term, and in that event a direction to place the case upon the clerk’s calendar for that purpose would be proper.' But that, question .is not now before ns, because so far the defendant has not raised the point, and on this appeal has contended that the case, as a whole, should have been ordered upon the equity calendar. Moreover, the whole controversy cannot be determined by a jury. • '' .

Under all the circumstances, as they appear before us, the two appeals should be disposed of as follows, viz.:

The order denying defendant's motion to dismiss the complaint for want of prosecution, etc., should he affirmed, with ten dollars costs and disbursements.

The order made upon plaintiffs’ motion directing the case to be placed upon the clerk’s calendar should be modified so as to read' upon the equity calendar of this court,” and, as thus modified, it should be affirmed, without costs.

Present: Freedman and Gildbrsleeve, JJ.

Order denying motion' to dismiss affirmed, with costs and disbursements, and order directing case to be placed on calendar, modified, and, as modified, affirmed, without costs.  