¶1While we are reluctant to interfere with the control of the calendars by the justices of the Trial and Special Terms, we feel that we should do so where their action is based upon a misconception of the rules established by this court. In 1916, because of complaints that had been made to us by members of the bar, of the prejudicial delay in the trial of actions for goods sold and delivered, upon the regular contract calendar, and having ascertained from the justices who had held Trial Term, Part II, that such cases could, without detriment to the classes of cases that had theretofore been tried therein, be placed upon the special calendar and tried in Part II, we amended the rules to provide that such- actions should be included in the class of cases, in which the nature of the action entitled the plaintiff, upon motion, to have his case placed upon such calendar as a *91matter of right. (Rules for Regulation of Trial Terms of Supreme Court, First Judicial District, New York County, rule VI, subd. 1.)
¶2The character of the action is to be determined by the complaint, and is not affected by the defenses or counterclaims of the defendant, especially where these latter are triable by a jury. (F. & D. Co. v. Uppercu, 163 App. Div. 879.)
¶3The order will, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted.
¶4Clarke, P. J., Dowling, Smith and Philbin, JJ., concur.
¶5Order reversed, with ten dollars costs and disbursements, and motion granted. Settle order on notice.