Rauchberger v. Interurban St. Ry. Co. 102 N.Y.S. 561, 52 Misc. Rep. 518

GILDERSLEEVE, J.

This.is an appeal from an order dismissing the plaintiff's complaint herein. The facts leading up to the making of the order appealed from are not in dispute. The action was brought to recover for personal injuries received by the plaintiff through the alleged negligence of the defendant. Issue was joined in the City Court, notice of trial served, a note of issue filed, and the case was placed upon the calendar in March, 1904, but was not reached for trial. Some time thereafter the justices of the City Court made a rule requiring a new note of issue to be filed on or before September 1, 1905. This rule was again readopted in June, 1906, and reads as follows:

“Ordered, that the clerk of the City Court of the city of New York make up a new calendar of the trial issues for October, 1906. Causes noticed for the first- time for the October term shall follow on the general calendar according to their dates of issue. No cause upon the present general calendar shall be placed upon the new calendar unless a new note of issue—for which no fee will be charged—be filed with the clerk from July 1 and on or before the 1st day of September, 1906, stating that the same has not been disposed of or settled and specifying thereon the date of issue and the number on the present calendar. And no cause on the present calendar shall retain its place upon the new calendar unless "such note of issue above mentioned be filed prior to the date above stated. And no orders shall be issued restoring to its place on the calendar any cause for which a new note of issue has not been filed on or before the above date. The call from said new calendar to commence with the cause next succeeding on the present general calendar the cause last reached in June.

“Adopted in convention June 1, 1906.

“Thomas F. Smith, Clerk.”

The appellant, in August, 1905, intending to conform to the practice laid down by said rule, prepared a new note of issue and intrusted the same to his law clerk to be filed. Again, in August, 1906, the plain-: tiff’s attorney prepared a note of issue for filing in conformity to the rule of the City Court as aforesaid, and then discovered for the first time that for some unknown reason the case was not upon the calendar ; it having evidently been dropped therefrom in 1905, the note of issue for that year not having been filed. The plaintiff’s attorney thereupon immediately sent a stipulation to the defendant, asking that the case be restored to the calendar. This was refused, and soon after, in September, 1906, and before the Trial Terms were open after the summer vacation, the defendant moved to dismiss the complaint for *563failure to comply with the rule, and the motion was thereupon granted.

It would seem that the only neglect, if any there was, with which the plaintiff is properly chargeable, is his failure to file a new note of issue in accordance with the provisions of the rule adopted by the justices of the City Court in the year 1905. That he acted in good faith and made an effort to so comply with the rule is not disputed, and only until he attempted to comply with the same rule promulgated in 1906 did he discover that his clerk had not filed a note of issue in 1905, or, if one was filed, the clerk of the City Court had overlooked it in making up the new calendar for 1905, and the case was not on the calendar. The rule itself is of somewhat doubtful construction.

It requires that before a case can be placed upon the new calendar, ordered to be made up by the clerk, a “new note of issue” must be filed. A comparison of the phraseology of the rule with that promulgated by the Appellate Division, providing for the making of a new calendar in the Supreme Court, shows a marked dissimilarity between the two rules. In the Appellate Division rule before a case can be placed upon the new calendar a “notice” must be filed setting' forth the same facts as is required to be set forth in the “note of issue” provided for by the City Court rule. The City Court rule further provides that “no order shall be issued restoring to its place on the calendar any cause for which a new note of issue has not been filed on or before the above date.” This provision is not included in the Appellate Division rule. The effect of the City Court rule is that in a case similar to the one at bar, if for any reason, no matter how valid, a party has failed to file a new note of issue in 1905, no order could be granted restoring the case to the calendar in 1906, or ever, without a violation of the express terms of the rule.

While it is true that the court has power within reasonable grounds to regulate its own calendar, and mav, independent of the statute, determine what case mav be tried first, or, in other words, may regulate its order of business (Hunnewell v. Shaffer [City Ct. N. Y.] 9 N. Y. Supp. 540), it cannot make a rule which in terms or effect violates the provisions of the Code of Civil Procedure (Gormerly v. McGlynn, 84 N. Y. 384). Section 977 of the Code provides that:

“The Appellate Division of each department may provide by rule for the manner of malting up calendars in each county embraced within the department, * * * ’’ and that in the county of New York “ * * * when a.party has served a notice of trial and filed a note of issue for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial or file a new note of issue for a succeeding term, and the action must remain on the calendar until disposed of.”

So far as a rule is inconsistent with the provisions of the Code, thus far it is invalid. Section 333, Code Civ. Proc. The authority, therefore, of the justices of the City Court to make and enforce the provisions of the rule aforesaid may well be doubted. There is nothing in the record tending to show that issues younger than those in the case at bar were reached and tried in 1905, and as the plaintiff, upon discovery that no new note of issue was filed in 1905, promptly asked the defendant to consent by stipulation to restore the case to the calendar, and his request was refused, such refusal certainly tended to pre*564vent an early trial of the action, and plaintiff’s only remedy, in view of the provisions of the rule aforesaid, was to oppose the motion to dismiss, and to apply to this court for relief by appealing from the order dismissing the case.

In any view of the facts the dismissal of the complaint was too harsh a punishment for any seeming neglect in failing to comply in 1905 with the rule aforesaid. Should this order be sustained, plaintiff would lose his right of action against the defendant, the statute of limitations having run. The order appealed from will be reversed, without costs, but with disbursements to the plaintiff, and the case restored to the calendar of the City Court; date of trial to be fixed by that court.

Order reversed, without costs, but with disbursements to the plaintiff, and case restored to the calendar of the City Court; that court to fix day of trial.

AMEND, J., concurs.

MacLEAN, J.

(dissenting). Excepting averment, not even upon hearsay, of an “omission, * * * 'no doubt due to an oversight on his part,” of a lawyer’s clerk, from whom comes not a word, nothing is offered to gainsay the evidence, over date of September 11, 1906, that this issue was joined June 23, 1903, and that younger issues of a similar character had been tried; evidence bringing the cause so directly within rule 36 of the general rules of practice that the motion to dismiss it could be denied only upon its being made to appear that the delay was not unreasonable. Sufficient thus appeared to sustain the action of the learned justice at Special Term, without regard to the special rule of the City Court, upon which stress is laid unduly, and which, at most, is an understanding ipter partes, and not a special, local mandate issued other whence to officials to disrespect the orders of the justices ordained under the Constitution of the state. The plaintiff may not complain of the fate of his cause. If he had a cause of action, he should have seen it tried by the attorney first retained or some other; for he had it pending in a court the condition of whose calendars was made well known by an abortive commission. The much indurated course of accepting adventitious excuses to conform to statutory procedure, once confirmed by custom, has brought into fashion a certain frivolity of practice, expensive to litigants, costing the county large sums of money, and squandering time supposedly valuable, besides at times notoriously covering objects not allowable.

The order should be affirmed.