Opinion
March 4, 1971
Appeal from an order of the Supreme Court, entered July 20, 1970 in Albany County, which denied appellant's motion to restore the above-entitled case to the Day Calendar for trial. This matter has been before this court previously. At that time we reversed the Special Term's order restoring the case to the Day Calendar, without prejudice to a renewal of the application within 20 days upon proper papers ( 34 A.D.2d 586). The application was not made within the 20-day period. Appellant contends he had an oral extension of time given by respondent's attorney. After a hearing, the Special Term found there was no oral stipulation. He saw and heard the various witnesses, and we find no reason to upset that determination. Consequently, it is unnecessary to consider whether appellant has remedied the defects in his original papers. Order affirmed, without costs. Staley, Jr., J.P., Greenblott, Cooke, Sweeney and Simons, JJ., concur.