Morgan v. Zimmer
105 N.Y.S. 914
N.Y. App. Div.
1907
Check Treatment
Chester, J.:

The defendant had done everything that the law required of him to perfect his appeal to the County Court from the judgment of the Justice’s Court, and the justice had failed to make and file his return within the time required by law. 'Nothing appears to show that the defendant was at fault in not compelling a.return to be filed in time to get the case on that calendar. An action is deemed • an action at issue in the appellate court after the expiration of ten days from the day of filing the justice’s return (Code Civ. Proc. § 3071), and it is only after the action is at issue that a party may *674serve á notice of trial and file with the- clerk a note of issue. The return not having been filed, the case was not at issue, and was, therefore, not properly on the calendar of the County Court. The defendant had served no notice of trial,,and filed no note of issue, • and had in no way waived his right to insist upon having the case stricken from the calendar; nor was the plaintiff in any position to ask the court to impose-witnesses’ fees- upon the' defendant as a con-■dition for putting the case over the term, for he had improperly put it upon the calendar. '

The order should he reversed, with ten dollars costs and disbursements. -

AlFconcurred.

Order reversed, with ten dollars costs and disbursements.