Otis Corbett, Respondent, v. The Spring Garden Insurance Company, Appellant

Otis Corbett, Respondent, v. The Spring Garden Insurance Company, Appellant. (Submitted October 2, 1899; decided October 10, 1899.) Reported below, 40 App. Div. 628. Motion to place upon the present calendar an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 23, 1899, affirming a judgment in favor of plaintiff entered upon a v.erdict and an order denying a motion for a new trial. The motion was made upon the grounds: 1. That this is the second appeal in the case; the return on the first appeal was filed April 27,1895, a calendar having been made up January 14, 1895, and was placed upon the calendar made up January 18,1897; a new trial was ordered and the return in the present appeal was filed September 7, 1899, the present calendar having been made up March 13, 1899; that section 195 of the Code of Civil Procedure does not necessarily apply to the next calendar after the- return is filed, but may be construed to apply to the present calendar. 2. That one of the witnesses for respondent is of an age that indicates a possibility of his death before a new trial could be •had in case one should be ordered by the Court of Appeals Lenehan & Dowley for motion. Cardozo & Nathan, opposed. [MAJORITY] Motion denied, without costs.