Neville v. Butler

26 Misc. 203, 55 N.Y.S. 436

• Court: City of New York Municipal Court
• Decided: January 15, 1899
• Status: Published

Opinion

Olcott, J.

’ This cause came bri for- trial at a Trial Term of this court on-"October 21, 1898. A jury was duly impaneled and sworn, .and’the plaintiff opened his case. ;

v.: .The1 defendant thereupon moved ‘the 'court to dismiss the complaint upon the ground that it appeared, upon the'face 'thereof, that it- -did riot stató facts sufficient,-to constitute a cause-of -action.

: The court directed that a juror be withdrawn, and, upon' motion of-the plaintiff,-granted him 'leave- to amend-his complaint herein so -aS to meet the objection raised. ’ - . ' ■-

’ . On the same day there was served upon the attorney for the defendant a copy "of the Order permitting plaintiff to -amend his complaint and also a. copy of such amended compláirit. •

On October 24, 1898, the cause' again appeared upon the day calendar; and the defendant, who had not served -any answer or demurrer to the amended complaint, his time within which to do" so having not then expired, moved, upon, an .affidavit showing these facts, to strike the cause from the calendar, and, from an order denying that motion, the defendant takes this appeal.

The motion should have been granted. The service of the amended complaint destroyed the original issues; no issue being then in -existence, the canse was no longer properly on the general calendar, and it should, therefore, have been stricken from the day calendar pending the framing of a new issue and the restoration of the cause to the general calendar. Coler v. Lamb, 19 App. Div. 236; Leonard v. Faber, 31 App. Div. 137; 52 N. Y. Supp. 772; Kimbel v. Mason, 61 Hun, 337.

We do not think that the subsequent service of an answer to the amended complaint operated as a waiver by the defendant of his right to insist upon this point and to take this appeal.

The order appealed from must be reversed, with $10 costs and disbursements.

Fitzsimons, Ch. J., and O’Dwyer, J., concur.

Order reversed, with $10 costs.