Schoenblum v. New York Railways Co. , 151 N.Y.S. 273 ( 1915 )

GUY, J.

The action was for a personal injury, issue was joined, notice of trial was served for first Monday of October, 1914,. and the case was put on the calendar as No. 10274. The calendar was renumbered, and the cause was renumbered 2607. It appeared in the Law Journal on the call calendar for Friday, October 23, 1914, and was marked “Ready,” it does not appear how. Plaintiff’s attorney neither served any notice of readiness for trial, nor received any notice that defendant was ready for trial. Under the amended rules neither party can answer “Ready” orally on the call of the City Court call calendar, as the amended rule reads: “The calendar will not be called in open court.”

The plaintiff’s moving affidavit is criticized as inartificial, in that its literal meaning is alleged to be that the plaintiff’s attorney did not personally receive notice that defendant was ready for trial. But as there is no proof of the service or filing of any notice of readiness by defendant, to sustain this criticism would substitute technicality for justice in contravention of section 768 of the Code.

Order modified, by striking out the words “on condition that plaintiff, within six days after the service of a copy of this order, with notice of entry thereof, pay to defendant’s attorney all taxable costs to date, besides $10 costs of opposing this motion; otherwise, motion will be denied” — and order, as SO' modified, affirmed. No costs of appeal to either party. All concur.