Appellate Term, First Department, February, 1918. [Vol. 102.

to bring the case to trial until June eighteenth although issue was joined on May ninth.

The order appealed from should therefore be reversed and the judgment vacated, with ten dollars costs to appellant.

FINCH, J., concurs.

LEHMAN, J. (dissenting). Section 95 of the Municipal Court Code provides that " Upon joinder of issue the clerk shall place the case upon a general calendar. Where either party appears in person, the clerk shall fix a date for trial not less than five nor more than eight days after joinder of issue, and shall immediately notify the parties by mail of such date. Unless otherwise provided by the rules, where both parties appear by attorney either party may serve a notice on the other fixing a date for trial not less than five nor more than eight days after the service of such notice, and shall file such notice, with proof of service thereof, with the clerk, who shall thereupon place the case on the calendar for trial."

While under this section a notice of trial must be given by the clerk by mail, there is no express provision therein permitting the attorney to serve such notice by mail. Section 796 of the Code of Civil Procedure provides, however, that: "A notice or other paper in an action may be served on a party or an attorney, either by delivering it to him personally, or in the manner prescribed in the next section," and the next section provides for service through the postoffice. Inasmuch as the Municipal Court Code has not expressly provided for the manner in which a notice of trial shall be served by the attorney, it seems to me clear that under section 15 of the Municipal Court Code these sections of the Code of Civil Procedure providing how notices may be served are applicable

Misc.] Appellate Term, First Department, February, 1918.

in the present case. It is claimed, however, that if these two sections are applicable, then section 798 of the Code is also applicable. That section provides that" Where it is prescribed in this act, or in the general rules of practice, that a notice must be given, or a paper must be served, within a specified time, before an act is to be done; or that the adverse party has a specified time, after notice or service, within which to do an act; if service is made through the post-office, three days shall be added to the time specified, except that service of notice of trial may be made, through the post-office, not less than sixteen days before the day of trial, including the day of service."

It is quite evident that the clause that "service of notice of trial may be made through the post-office not less than sixteen days before the day of trial including the day of service" is not applicable to the Municipal Court. The real question in this case then is whether where service of a notice is made through the mail three days must be added to the time within which such service must be made? While the point is not clear of doubt, it seems to me that the legislature did not intend to make this provision applicable to notices of trial in the Municipal Court. Where a party appears in person the clerk is required to notify the parties by mail of the date fixed for trial" not less than five nor more than eight days after joinder of issue." Clearly the additional three days has no special application to notice by mail for the statute. contemplates only service by mail. The same time is fixed for a notice by a party where both parties have appeared by attorneys. I see no reason to believe that the legislature intended that, where a party serves such notice even by mail, he is required to add to the time an additional three days.

It seems to me, on the contrary, that when this

Appellate Term, First Department, February, 1918. [Vol. 102.

section of the Municipal Code is read in its entirety, it would appear that the legislature intended to provide for exactly the same notice whether such notice be served by the clerk of the court or by a party unless otherwise provided by the rules of the court. In my opinion the provision for the additional three days within which notices must be served, if served by mail, has no application either in the Supreme Court or in the Municipal Court to notices of trial but that in both cases the legislature has made specific provision for the time in which such notices should be served.

It follows that the order should be affirmed, with costs.

Judgment reversed, with costs.

JOHN E. SCHULTZ, Respondent, v. HAROLD SCHAFFER, Appellant.

(Supreme Court, Appellate Term, First Department, February,

Where upon a trial of an action on defendant's demand note given for a loan, the defense being usury, it clearly appeared that plaintiff's agents, with full authority to act and as a part of the same transaction, demanded and received from defendant usurious interest and that the making of a third party payee of the note was a mere subterfuge, a judgment in plaintiff's favor will be reversed and the judgment directed in favor of defendant.

APPEAL by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of plaintiff, entered by direction of the court, after a trial without a jury.

Misc.] Appellate Term, First Department, February, 1918.

Patrick J. Walsh, for appellant.

Henry Salant, for respondent.

GUY, J. The action is on a demand note, the defense being usury.

The evidence shows that defendant applied at the office of the State Loan and Realty Association for a loan of fifty dollars; that the office was in charge of two men named respectively Ryan and Fried; that Ryan asked defendant for references, and defendant signed an application and was told by Ryan that as soon as they verified defendant's statements they would let him hear from them; that he called subsequently and had a conversation with Ryan, who told defendant that his application for a loan had been passed; that it was necessary for him to sign a note and that he would have to pay either eleven or twelve weeks at five dollars a week; that he then signed the note in suit, which is to the order of one Sherrod, who was interested in said association and who indorsed and delivered same to the plaintiff; that forty dollars was then paid to defendant by Fried, who, when asked about the additional ten dollars, said that that was their way of doing business; that they collected the interest first.

From the evidence it is convincingly clear that plaintiff's agents, who conducted the entire transaction and who demanded and received usurious interest from defendant, were clothed with full authority to act in plaintiff's behalf in the making of the loan and fixing the terms thereof, and that making a third party payee of the note was a mere subterfuge. It was not, therefore, a case where an agent or broker received usurious interest for his benefit. The entire transaction was for the benefit of the plaintiff, and the rule

Appellate Term, First Department, March, 1918. [Vol. 102.

laid down in Stillman v. Northrup, 109 N. Y. 473, does not apply.

The judgment must be reversed, with thirty dollars costs, and judgment directed in favor of defendant, with costs.

WEEKS and MULLAN, JJ., concur.

Judgment reversed, with costs.

EARL H. PELLETIER, Respondent, v. FIFTH AVENUE COACH COMPANY, Appellant.

(Supreme Court, Appellate Term, First Department, February,

Where upon the trial of an action plaintiff's counsel insisted upon calling defendant's counsel to the witness stand and asking him many questions, that were allowed, designed to elicit information concerning the case possessed by the witness solely through the relationship of attorney and client, a judgment in favor of plaintiff will be reversed and a new trial ordered, the same to be conducted with a proper regard for the ethics of the legal profession.

APPEAL by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of plaintiff, for $473.70, entered on the verdict of a jury.

James L. Quackenbush (W. H. Wood, of counsel), for appellant.

Slade & Slade, for respondent.