
    Emil Lederer, Respondent, v. Ettie Adler, Wolf Lazarus, Morris Lazarus and Harry Lazarus, Appellants.
    (Supreme Court, Appellate Term,
    June, 1904.)
    Calendar—Filing of note of issue before service of notice of trial.
    A case should not be stricken from the calendar merely because the attorney filed his note of issue before he served his notice of trial, where both acts were done by him on the same day, and this because the law does not often take account of fractions of a day.
    Appeal by the defendants from an order of the City Court of the city of Hew York, denying a motion to strike the above-entitled cause from the calendar.
    Benjamin Reass, for appellants.
    Henry Kuntz (Sigmund Horkimer, of counsel), for respondent.
   MacLean, J.

On one and the same date, April 16, 1904, the plaintiff filed his note of issue and served his notice of trial. Inasmuch as the note of issue must have been filed before one o’clock in the afternoon of that day, it being a Saturday, and the notice of trial was served at half-past four o’clock in the afternoon, the appellants contend that this cause was improperly upon the calendar for the reason that under section 3162, Code of Civil Procedure, as interpreted in Miner v. Galvanotype Engraving Co., 30 Misc. Rep. 200, the notice of trial should be served before the filing of a note of issue, which “must * * * state the date or the term for which the notice has been given.” The nicety of sequence In events is hardly commanded by the statute, which does not forbid an attorney or his clerk from preparing the two papers on the same day and carrying both out at the same time for service and filing, although one may by an hour or two anticipate the other, for," provided due and timely information be given, the law, especially in matters of practice, seldom ' takes account of immaterial fractions of a day or depends- upon casuistical sequences and-subsequences. The order should be affirmed.

. Order appealed from affirmed, with' costs and disbursements.

Freedman, P. J., and Scott, J., concur.

Order affirmed, with costs and disbursements.  