Gair v. Birmingham

15 N.Y.S. 147, 20 N.Y. Civ. Proc. R. 233, 1891 N.Y. Misc. LEXIS 3093

• Court: The Superior Court of the City of New York and Buffalo
• Decided: March 21, 1891
• Status: Published

Opinion

McAdam, J.

The defendants served an answer to the complaint, and the plaintiff thereupon served a notice of trial, and filed a note of issue. The defendants thereafter served an amended answer. The plaintiff moved to strike out the answer, and the application was denied by Judge Dugro. See Code, § 542. The defendant now moves to strike the case from the calendar, and the plaintiff makes a counter-motion for leave to amend his notice of trial and note of issue, nunc pro tune. The rule is settled that, where an amended pleading is served, there must be a new notice of trial (Ostrander v. Conkey, 20 Hun, 421; Clifton v. Brown, 27 Hun, 233, 234; 2 Rum. Pr. 204, and a new note of issue, Black v. Bank, 2 Abb. N. C. 332.) Where a proper notice of trial is served, the court may permit the note of issue to be amended nuñc pro tune. Clinton v. Myers, 43 How. Pr. 95. The court, having authority to regulate its calendar, undoubtedly possessed this power. But the service of a notice of trial is a statutory condition precedent to obtaining a place on the calendar or of forcing an adversary on. The form of the notice, and the time of service, are regulated by the statute; and the court can dispense with neither, except by the consent of the parties, or as a condition to granting some favor. 1 find no authority to amend the essential requirements of the notice, or to permit of the service nunc pro tune. Upon the hearing of the motion to strike out the amended answer, made under section 542, Judge Dugro might have stricken out the answer, unless the defendant •consented to waive the irregularities in the service of the notice of trial and note of issue. He did not impose any such condition. I can impose no such condition now. Motion to strike from calendar granted, and motion for leave to amend denied. No costs.