Opinion
May Term, 1898.
Present — Barrett, Rumsey, O'Brien and McLaughlin, JJ.
Order, so far as it grants motion to strike cause from Special Term calendar affirmed. So much of order as grants leave to either party to make further application, stricken out. No costs to either party of this appeal.
The order, so far as it directs that this cause should be stricken from the Special Term calendar was proper. The action should be tried at a Trial Term of the court, where it properly belongs. So much of the order, therefore, as grants the motion to strike the cause from the Special Term calendar, with costs, should be affirmed. But the court below, having all the facts before it, should not have provided for a further application as to this mode of trial. So much of the order, therefore, as grants leave to either party to apply as he may be advised for an order directing the mode of trial of issues in the action should be stricken out. No costs to either party of this appeal.