Halsey L. Morgan, Respondent, v. Martin Zimmer, Appellant

Halsey L. Morgan, Respondent, v. Martin Zimmer, Appellant. Third Department, June 25, 1907. Justice’s Court—: appeal—new trial in County Court— date of issue -r-cause stricken from calendar. On an appeal from a1 Justice’s Court demanding a new trial in' the- County Court, the case is not at issue until- the- expiration of ten days from- the, filing of the justice's return. . When no return has been filed, a defendant who has served no notice of trial and filed no noté of issue is entitled-to have the case stricken from the calendar if improperly put thereon by the plaintiff. The , defendant cannot he charged with witness’ fees as a condition for putting the cause over the term-. , Appeal, by the defendant, Martin Zimmer, from aii order of the County Court of Broome county, entered in the office of the clerk of the county of Broome on the 28th day of February, 1907, dismissing the appeal of the defendant from á judgment of a Justice’s Court. The appeal which was dismissed demanded a new trial in the County Court. Tile defendant on taking his appeal paid the justice his feesj required bylaw, and filed an Undertaking to perfect the appeal. The plaintiff served notice of exception to the sureties on" such undertaking, and the defendant paid no attention to such notice. Thereafter the court made an order dismissing defendant’s appeal unless he paid ten dollars costs of motion and served a ■new undertaking, Defendant thereupon paid such costs,,and filed a new undertaking which was not excepted to. The justice failed" to filé his return on the appeal in the Broome county clerk’s-office within the time required by law. The plaintiff, however, served notice of trial and a note of issue for the May term of the County Court. When the case was called at the opening of the term plaintiff’s counsel announced that he was ready for trial when the case should be reached. When the case was reached plaintiff moved to. dismiss the appeal on the grounds that no return had been filed, and. that there are no pleadings on file Upon which the court could, proceed to trial. The defendant, thereupon, swore witnesses.who testified that a paper presented was a correct copy Of the complaint in the action, and that the answer thereto was a general denial. The court then directed the trial to proceed, but the plaintiff declined to proceed with the trial. The court asked counsel for the plaintiff if they would withdraw their motion for a dismissal of the appeal and consent that the case pass the term on motion of the defendant, upon payment of witness’s fees, and the plaintiff’s counsel stated that they would withdraw the motion to dismiss, and consent that the case.pass the term upon the motion of the defendant and upon payment of witness’s fees. The defendant, however, did not make a motion to put the case over the term,' but instead moved' to strike the case from the calendar upon the ground that, nojreturn having' been filed, the case was not at issue, and, therefore, not properly on tlie'calendar. The-court granted the motion to dismiss the appeal with costs, and' the defendant has appealed to this court. Harvey D. Hinman, for the appellant. H. J. Hennessey and D. A. Millen, for the respondent. [MAJORITY — Chester, J.:] Chester, J.: The defendant had done everything that the law required of him to perfect his appeal to the County Court from the judgment of the Justice’s Court, and the justice had failed to make and file his return within the time required by law. 'Nothing appears to show that the defendant was at fault in not compelling a.return to be filed in time to get the case on that calendar. An action is deemed • an action at issue in the appellate court after the expiration of ten days from the day of filing the justice’s return (Code Civ. Proc. § 3071), and it is only after the action is at issue that a party may serve á notice of trial and file with the- clerk a note of issue. The return not having been filed, the case was not at issue, and was, therefore, not properly on the calendar of the County Court. The defendant had served no notice of trial,,and filed no note of issue, • and had in no way waived his right to insist upon having the case stricken from the calendar; nor was the plaintiff in any position to ask the court to impose-witnesses’ fees- upon the' defendant as a con-■dition for putting the case over the term, for he had improperly put it upon the calendar. ' The order should he reversed, with ten dollars costs and disbursements. - AlFconcurred. Order reversed, with ten dollars costs and disbursements.