Herzfeld v. Strauss No. 2

Full title: FELIX HERZFELD and Others, Appellants, v . DAISY STRAUSS and WILLIAM…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 1, 1897

24 App. Div. 95 (N.Y. App. Div. 1897)

49 N.Y.S. 92

Opinion

December Term, 1897.

De Lancey Nicoll, for the appellants.

Franklin Bien, for the respondents.

PATTERSON, J.:

This is an appeal from an order denying a motion to place this cause upon the calendar for the trial of short causes. The motion was made under rule 6 of the Rules for the Regulation of Trial Terms in the first department, which rule took effect January 1, 1897. The ground of the motion was that the cause would not occupy more than two hours in its trial. The point is made by the respondents that the order is not appealable.

The ordinary rule concerning motions of this character is that their disposition is within the judicial discretion of the court to which the motion is originally addressed, but there are cases in which it becomes the duty of this court to review the discretion exercised below. From the papers presented in this record, it seems to us to be clearly established that this cause could not in its trial occupy two hours, and should not occupy half that time. Without expressing any opinion upon the merits of the controversy, it is perfectly obvious that the plaintiffs' proofs can be put in in a few minutes, and, even if the defendants are allowed to go into the matters which are set up in the amended answer, these matters are so clearly stated, and are so readily susceptible of proof (if they exist), that they can be put before the court and jury in a very short time.

The order appealed from should be reversed, with costs, and the motion to put the cause on the short cause calendar granted, with costs.

WILLIAMS, O'BRIEN and INGRAHAM, JJ., concurred; VAN BRUNT, P.J., dissented.

VAN BRUNT, P.J. (dissenting):

I dissent. There is no reason why appeals of this character should be encouraged by this court. I think it extremely doubtful whether this cause can be tried in two hours. There will be a sharp controversy about the facts, and under these circumstances there is no evidence of an abuse of discretion in the denial of the motion in the court below.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.