Opinion
278 A.D. 327 104 N.Y.S.2d 749 LOUIS ROMAN, on Behalf of Himself and All Members of Brotherhood of Painters, Decorators and Paper Hangers of America, of District Council No. 9 for the Boroughs of Manhattan and The Bronx, Similarly Situated, Respondent, v. LOUIS CAPUTO, as President, or MARTIN RARBACK, as Secretary-Treasurer of District Council No. 9, Brotherhood of Painters, Decorators and Paper Hangers of America for the Boroughs of Manhattan and The Bronx, Appellant. Supreme Court of New York, First Department. May 29, 1951
APPEAL from an order of the Supreme Court at Special Term (KOCH, J.), entered May 9, 1951, in New York County, which granted a motion by plaintiff for a preference in the trial of the action, directing the clerk to accept a note of issue with short service setting the case down for trial at or near the head of the calendar.
COUNSEL
George Rifkin of counsel (David I. Ashe with him on the brief; Ashe s&sRifkin, attorneys), for appellant.
Solomon Surowitz of counsel (Surowitzs&sRuskin, attorneys), for respondent.
Per Curiam.
There is no compelling reason here presented why there should be a departure from the well-recognized requirement that a note of issue must be filed at least twelve days before the commencement of any term and that a preference should not be granted until an action is properly on the calendar (Rules Civ. Prac., rules 150, 151; Manarrow Realties, Inc., v. Conrad Corp., 222 A.D. 652; cf. Zimmerman v. Rahmeyer, 230 A.D. 719). The proper practice for plaintiff to have adopted in the circumstances was to have moved for an injunction pendente lite. In disposing of that injunction, the court could properly have imposed as one of the conditions an early trial on a short note of issue (Roberts v. Schaf, 76 A.D. 433). The order should be reversed and motion denied, without costs and without prejudice to an application for a temporary injunction.
GLENNON, J. P., COHN, CALLAHAN, SHIENTAG and HEFFERNAN, JJ., concur.
Order unanimously reversed and the motion denied, without costs, and without prejudice to an application for a temporary injunction.