Edwin Knowles, Respondent, v. Paul Lichtenstein, Appellant

Edwin Knowles, Respondent, v. Paul Lichtenstein, Appellant. Calendar practice — relief must be regulated in the court below, and not by appeal — a decision that a trial must proceed is a ruling on the trial and is reviewcMe by-appeal or by a motion to set the judgment aside. Where, on an appeal from an order denying a motion of the defendant to vacate an order placing an action on the special calendar of the Supreme Court for the trial of short causes, and to strike said action from the special calendar of a Trial .Term held by another justice, it appears that judgment has already been taken by default, the defendant will not be given relief on the direct appeal, but will be left to his remedy of making a motion in the court below. A decision of the trial justice that a trial shall proceed, accompanying Ms refusal to strike the case from the calendar of short causes, is, within section 992 of the Code of Civil Procedure, a ruling on the trial, the subject of exception, to be corrected either by an appeal from the judgment or by a motion to set it. aside. Appeal by the defendant, Paul Lichtenstein, from an order of' the Supreme Court, made at the Kings County Special.Term and entered in the office of the clerk of the county of Kings on the 12th: day of March, 1898, denying the defendant’s motion to vacate and set aside an order entered by plaintiff’s attorneys, placing the action on the special calendar of the court for the trial of short causes, and to strike said action from the special calendar of the court. David Neumark, for the appellant. Hugo Hirsh, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : It was conceded on the argument of this case that judgment had been taken by default, and the real question to be decided here is whether the defendant shall be given relief on this appeal or whether he shall be left to his remedy of making a motion to open the default. It is not necessary to go into a discussion of the merits of this case, nor is there any question that precedent can be found for the practice which is here proposed ; but it does not seem to us compatible with the dignity of the trial court that its regulations adopted for the purpose of facilitating the discharge of its duties should be subject to review by this court where no substantial right of either party is involved. It is necessary that the justices holding the trial terms should exercise exclusive control over their own calendars, and the defendant having a remedy for any wrong which he may have suffered by reason of the judgment being taken against him by default, by moving to vacate the judgment entered against him, we are not disposed to reverse the order of the trial court. Rule 37 prescribes that no stay shall be effective unless granted by the judge appointed to hold the Trial Term, or unless contained in an order to show cause returnable on the first day of the term. So far, therefore, as the order of the Special Term appealed from refused to strike the cause from the calendar of a Trial Term held by another justice, it seems to us unquestionably correct. Even had the application been made to the judge holding the Trial Term, and been by him refused, we doubt the advisability of reviewing such action by a direct appeal. It is conceded that a party may oftentimes be subjected to hardships and annoyance by an erroneous ruling of the trial court, either refusing to postpone a trial or directing a trial to proceed when there is no valid notice of trial; but the inconvenience that will arise from entering orders on decisions of trial courts with reference to these matters, and hearing appeals from such orders, will be very great. Such proceedings to be of practical advantage to the aggrieved party generally require that the proceedings in the action should be stayed. If such a practice is to obtain, all the evils sought to be prevented by the rule cited will occur. It is not the refusal to strike the case from the calendar, but the direction made when the case is called, that the trial proceed, that is the real determination or decision of the court; and ■this latter, in our opinion, should be considered a ruling on the trial ■under section 992 of the Code of Civil Procedure, and the subject •of exception, to be corrected either by appeal from the judgment or by motion to set it aside. (See Nutting v. Kings County Elevated R. R. Co., 3 App. Div. 423.) The appeal is dismissed, without costs. All concurred. Appeal dismissed, without costs.