Jesse Wassermann and Others, Copartners, under the Firm Name of Wassermann Bros., Appellants, v. Gustavus A. Pfizer, Respondent

Jesse Wassermann and Others, Copartners, under the Firm Name of Wassermann Bros., Appellants, v. Gustavus A. Pfizer, Respondent. First Department, June 28, 1912. Trial—action on promissory notes—special calendar — separate trial of equitable issues. In an action to recover upon promissory notes made by the defendant to the order of the plaintiff, the fact that a defense is interposed which seeks equitable relief of that an action has been commenced by defendant against the plaintiff before the commencement of the present action does not deprive the plaintiff of his right to have the case placed upon the special calendar of Trial Term, Part II, under rule 5, subdivision 2, for the regulation of Trial Terms. If the defendant desires a separate trial of equitable issues his remedy is under section 967 of the Code of Civil Procedure. Appeal by the plaintiffs, Jesse Wassermann and others, 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 21st day of May, 1912. Henry M. Wise, for the appellants. George C. Lay, for the respondent. [MAJORITY — Dowling, J.:] Dowling, J.: This appeal is taken from an order denying a motion to place the cause on the special calendar of Trial Term, Part II. The action is brought to recover upon two promissory notes made by defendant to the order of plaintiff. Under rule 5, subdivision 2 of the Rules for the Regulation of the Trial Terms of the Supreme Court in the First Judicial District and to Regu- . late the Calendar Practice therein, such an action is entitled to be placed upon the special calendar. The fact that a defense is interposed which seeks equitable relief does not bar the right of plaintiff to the assignment of his action for trial on such calendar, for if defendant desires the separate trial of such issue, his remedy is under section 967 of the Code of Civil Procedure. Nor does the fact that an action has been commenced by defendant against plaintiffs before the commencement of the present action furnish any reason for denying to plaintiffs the speedy trial to which they are entitled under the rule. The order appealed from is reversed, with ten dollars costs and disbursements, and the motion to place the cause on-the special calendar is granted. Ingraham, P. J., McLaughlin, Scott and Miller, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted.