FITZSIMONS, Ch. J.
In view of the affidavit submitted by plaintiff's attorney sworn to in person we think that the order appealed from should not have been granted. In the affidavit it appears that in April last this action appeared upon the day calendar; it also appears upon plaintiff's brief submitted upon this appeal that it was marked reserved generally. The Law Journal judges' calendar of April 6, 1899, sustains this statement.
The clerk's certificate as to whether the case was on the general calendar was not obtained by either plaintiff's or defendants' attorneys. If this had been done, the Special Term justice would not have been compelled to decide this motion upon the contradictory statement in the affidavits submitted.
In view of the publication in the Law Journal it is apparent that the statement made by the managing clerk that the case was not on the calendar is not true, but of course was not intentionally false.
The order appealed from is reversed, without costs or disbursements to either party.
O'DWYER, J., concurs.
Order reversed, without costs.