It appears from the record in this case that this motion was brought before the court upon an order to show cause which was served only the day before the return day, although it appears to have been granted two days prior to such service. Upon the return day the motion appeared as Ho. 46 on the motion calendar of the Special Term. On the same day the counsel for the appellant herein had a case upon the. calendar of the Appellate Division, which stood Ho. 3 thereon. Application was made to the court at Special Term for a postponement of the motion, as the counsel was actually engaged in the Appellate Division. This application was denied, and the motion was thereupon granted by the court.
We think, under the rules of the Appellate Division, the appellant had a right to a postponement, and the denial thereof was error.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term for hearing.
Patterson, O’Brien, McLaughlin and Hatch, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion remitted to Special Term for hearing.