Elijah W. Sells and Others, Respondents, v. Autographic Register Company, Appellant

Elijah W. Sells and Others, Respondents, v. Autographic Register Company, Appellant. First Department, May 3, 1912. Practice — action on promissory note — motion under subdivision 2 of rule 5 of Trial Term Rules to place cause on special calendar — injunction to restrain prosecution of action. The plaintiff in an action upon a promissory note is entitled to an order, under subdivision 2 of rule 5 of the Trial Term Rules of the First District, "which provide that “in an action * * upon a negotiable instrument, either party may, after the cause has been placed upon the general calendar, upon two days’ notice to the opposing party, apply to the justice holding Part II of the Trial Term for an order placing said cause upon the special calendar for trial, and said cause shall thereupon be tried and disposed of at Part II of the Trial Term,” regardless of the time which will be consumed in the trial or the nature of the defense interposed. If the defendant in such an action wishes to prevent the trial until after it has disposed'of an action against the plaintiff for fraud in the transaction in which the note was given, it may apply to the Special Term for an injunction upon giving security for the payment of the notes. Appeal by the defendant, the Autographic Register Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of April, 1912, placing the case upon the special calendar for preferred and short causes. Justus P. Sheffield, for the appellant. Vincente K. Smith, for the respondents. [MAJORITY — Ingraham, P. J.:] Ingraham, P. J.: This action was brought to recover upon a promissory note made by the defendant whereby it promised to pay to the order of one Sells $4,736.87, with interest at four per cent. The defendant admits the making of the note; denies knowledge or information sufficient to form a belief as to its indorsement by the payee or as to its protest for non-payment; and then for a counterclaim sets up a cause of action against the plaintiffs and two other persons, alleging that the note in suit was part of the consideration for the purchase of stock in a corporation; that the defendant was induced to purchase that stock by the fraudulent misrepresentation of the plaintiffs and their associates; alleges damage by the fraud of $100,000, and asks judgment for that sum, and that the note in suit and two other notes now held by the plaintiffs, but which were not due, should be delivered up and canceled. Upon the pleadings and an affidavit plaintiffs moved to place this cause upon the calendar of Part 2, Trial Term, for trial, under rule 5 of the Rules for the Regulation of the Trial Terms of the Supreme Court in the First Judicial District and to Regulate the Calendar Practice therein. That motion was granted and from the order entered thereon the defendant appeals. This motion was made under subdivision 2 of rule 5 of the Trial Term Rules. It is there provided that “in an action wherein the plaintiff seeks to recover a debt or liquidated demand upon a bond or other obligation for the payment of a specific .sum Of money; upon a bond or undertaking on appeal, or upon a negotiable instrument, either party may, after the cause has. been placed upon the general calendar, upon two days’ nótice to the opposing party, apply to the justice holding Part II of the Trial Term for an order placing said cause upon the special calendar for trial, and said cause shall thereupon be tried and disposed of at Part II of the Trial Term. ” This rule provides for the prompt trial of an action upon promissory notes or other negotiable instruments regardless of the time which will he consumed in the trial of the case or of the nature of the defense interposed. The defendant had given-this promissory note. It was held by the plaintiffs, and the plaintiffs were entitled to maintain an action to recover upon it. No defense tq the note is set up in answer, but by a counterclaim the defendant seeks to recover from the plaintiffs the damages that it sustained by reason of the plaintiffs’ fraud in the transaction in which the note was given. It is stated in the papers that the defendant has brought an action against the plaintiffs and the others associated with them to recover damages for this fraud and that it wants to try that case before .this action is tried. The plaintiffs, however, wish to.try their action upon the promissory note first, and under the rules' established for the regulation of business at the Trial Terms are entitled to such trial. The rule is perfectly simple and speaks for itself. Under it the plaintiffs, suing on a promissory note, were entitled to have the case tried at Part 2 of the Trial Term and no defense that a defendant interposed could prevent such trial. If the defendant wished to prevent the trial of this action until after it had disposed of its other action it could apply to the Special Term for an injunction either in the suit in which it seeks the cancellation of the note or in an action in equity which it could bring for the purpose of enjoining the plaintiffs from enforcing the note pending the trial of its other action, in which case, on giving security for the payment of the note and the other notes the payment of which it sought to enjoin, the Special Term would have the power to enjoin the prosecution of this action. There is no reason why the plaintiffs should not be entitled to enforce their promissory note according to the rules and practice of the court merely because the defendant has elected to interpose a counterclaim in which, if it is successful upon the trial, would entitle it to an affirmative judgment against the plaintiffs in excess of the amount of the note in suit. We think that the court below correctly interpreted this rule as providing for the preference of an action brought upon a promissory note irrespective of the defense interposed, and that the order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements. McLaughlin, Clarke, Scott and Dowling, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.