Gerel v. United Scientific Laboratories, Inc.

260 A.D. 1004, 24 N.Y.S.2d 995, 1940 N.Y. App. Div. LEXIS 5806

Opinion

When the resettled order appealed from was made, issue had not yet been joined nor had forty days elapsed since the service of a summons initiating the action. (Civ. Prac. Act, § 433.) In the circumstances the order was not authorized. Order unanimously reversed, with twenty dollars costs and disbursements to the appellant against the plaintiff-respondent, and the action set down for trial at the head of the Ready Day Calendar of Special Term, Part III, for the 2d day of January, 1941, upon the filing by plaintiff of a note of issue for January, 1941, Term, and the Clerk of Special Term Part III, is directed to place this action at the head of the Ready Day Calendar for the 2d day of January, 1941, upon the due filing of such note of issue. Present — Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ.