Opinion
February 4, 1927.
Appeal from Supreme Court of New York County.
Daniel S. Murphy of counsel [ Greene Hurd, attorneys], for the defendant, appellant.
Harold Remington of counsel [ Remington Meek, attorneys], for the plaintiff, respondent.
Colley W. Bell, for the defendant, respondent.
Present — DOWLING, P.J., FINCH, McAVOY, MARTIN and O'MALLEY, JJ.
As we view the applications which resulted in the orders appealed from, they ask for substantially the same relief heretofore denied by another justice on a previous motion upon the ground that a granting of the motion for such temporary relief would involve a determination in advance of the issues in the action. The order on the previous motion was unanimously affirmed by this court ( 217 App. Div. 735). Except for lapse of time and additional indebtedness incurred as a result thereof, no change in circumstances is presented. In these circumstances the orders should not have been made. We can find no analogy in these applications to the practice pursuant to the provisions of section 226 of the Civil Practice Act. The right of the plaintiff and the cestui que trust to the relief sought is one of the issues to be determined on the trial, as those issues now stand. Moreover, these parties have not as yet shown a clear right to the ultimate relief sought in the action. There seems to be no reason why a speedy trial should not be had. The action was begun January 5, 1926, and no reason is disclosed why it has not been brought to trial. In fact the record discloses that it was reached on the reserve calendar on October 26, 1926. Had it not been for these motions and the request of the plaintiff's attorneys for an adjournment of the trial the issues would now have been fully litigated.
In these circumstances the orders should be reversed, with ten dollars costs and disbursements, and the motions denied, with ten dollars costs.
Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs.