Evans v. Olmstead

31 Misc. 692, 66 N.Y.S. 63

• Court: New York Supreme Court
• Decided: June 15, 1900
• Status: Published

Opinion

Gtldebsleeve, J.

The defendant, Ida L. Olmstead, by her attorney, Mr. W. J. Miller, makes this motion to strike the cause from the calendar. The facts appear to be as follows, viz.: The summons and complaint were served on March 24, 1900; the defendant’s time to answer was extended to April 21, 1900, when the answer was served; on April 23, 1900, Mr. O. W. Sinnott, the attorney for the plaintiff, Daniel S. Evans, served a notice of trial on defendant’s attorney, together with a notice of preference returnable on the first Monday of May; plaintiff’s attorney filed a note of issue and the cause was put on the general calendar; on May seventh the motion for a preference was granted and the cause was placed on the preferred calendar and set down for trial on May twenty-first; thereafter, and on May 11, 1900, defendant served and filed an amended answer, just twenty days after the service of the original answer, on April twenty-first; on the twenty-first of May the cause came on for trial on the preferred calendar, and was stricken therefrom, for the reason that no notice of trial had been served and no note of issue had been filed since the service of the amended answer. Defendant now moves to have the cause also stricken from the general calendar upon the same ground. It is a well-established rule that where an amended pleading is served after the service of the notice of trial and the filing of the note of issue, a new notice and a new note are necessary. See Jones v. Seaman, 30 Misc. Rep. 65, 62 N. Y. Supp. 884, and eases there cited. It is true that a very recent amendment to section 723 of the Code provides as follows, viz.: “ When amending a pleading or permitting the service of an amended or supplemental pleading in a ease which is on the general calendar of issues of fact, • the court may direct that the case retain the place upon such calendar which it occupied before the amendment or new pleading was allowed, and that the proceedings had upon the amended or supplemental pleadings shall not affect the place of the case upon such calendar, or render necessary the service of a new notice of trial.” This amendment to the Code, however, does not go into effect until next September, arid has no bearing whatever upon this motion. The plaintiff’s counsel also urges that the amended answer was interposed in bad' faith. If so, he has his remedy at Special Term by a motion to strike it out, but, so far as this motion is concerned, we have the established fact of the service of an amended pleading, without any subsequent service of a notice of trial or filing of a note of issue. The motion to strike the cause from the calendar is granted.

Motion granted.