Prisco v. Sack , 238 A.D. 871 ( 1933 )

Order denying motion to vacate judgment reversed on the law and the facts, motion granted upon payment to the plaintiff of twenty dollars costs in five days from the entry of the order herein, and the case set for trial for Monday, April 3, 1933, with the consent of the justice presiding at Special Term. While we think the defendant waived any question as to the power of the court to direct that the case be placed on the Special Term calendar for trial before note of issue or notice of trial had been served, we are of opinion that defendants should not be deprived of an opportunity to present their defense. The appeal from the order in so far as it fixes date of trial is dismissed. Lazansky, P. J., Young, Hagarty, Carswell and Seudder, JJ., concur.