Mangone v. Metropolitan Street Railway Co.

48 N.Y.S. 644, 21 Misc. 505

Opinion

GILDERSLEEVE, J.

This case appeared on the calendar on October 8, 1897, and was, on defendant’s motion, adjourned to November 12, 1897. On October 18, 1897, plaintiff served a notice of trial on defendant’s attorney for the November term of 1897, which notice was accepted by said attorney for defendant, and has never been returned by him. On November 12, 1897, the case again appeared on the calendar, and defendant thereupon for the first time made this motion to strike it therefrom for the irregularity in serving the notice of trial for a term long subsequent to that for which the note of issue was filed. See Siefke v. Siefke, 21 Misc. Rep. 407, 47 N. Y. Supp. 953. It seems to me that defendant’s laches in waiting until the cause had appeared for the second time on the calendar before taking advantage of plaintiff’s failure to serve a notice of trial, together with defendant’s neglect to return the notice of trial subsequently served, combined with defendant’s action in moving, when the cause first appeared on the calendar, to have it adjourned to November 12, 1897, operate as a waiver of the irregularity charged. See Stanfield v. Stanfield, 21 Misc. Rep. 409, 47 N. Y. Supp. 1010; Haberstich v. Fischer, 6 Civ. Proc. R. 82. Motion denied, and cause set down on Friday’s calendar, December 10, 1897.

Motion denied.