Skeele Coal Co. v. Baker

Appellate Division of the Supreme Court of New York

Skeele Coal Co. v. Baker

167 A.D. 920, 152 N.Y.S. 325

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 1915

StatusPublished

Cited by3 cases

This text of 167 A.D. 920 (Skeele Coal Co. v. Baker) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Skeele Coal Co. v. Baker, 167 A.D. 920, 152 N.Y.S. 325 (N.Y. Ct. App. 1915).

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Opinion

Per Curiam:

On Hovember 24,1914, an order was made by the Special Term granting a motion for leave to serve an amended complaint upon payment of costs, the complaint to be served within five days, the defendant to have twenty days to answer or otherwise act. The amended complaint was duly served Hovember twenty-fifth, the answer and counterclaim received December fifteenth, and the reply duly served on December twenty-first. When the ease appeared for trial upon the calendar the defendant moved to strike the same from the calendar upon the ground that no note of issue or notice of trial had been filed or served after the creation of the new issues, no reservation having been made in the order permitting the said amendment directing that the said ease retain its place upon the calendar. This motion was granted by an order of the Trial Term, dated January 5, 1915. Thereafter, on February 4, 1915, the Special Term made an order purporting to resettle the order of Hovember 24, 1914, allowing the service of the amended complaint by adding thereto: “the original notices of trial of both parties and note of issue to stand as and for the new issue joined.” From this order the defendant appeals. We think that as all of the proceedings contemplated and authorized by the original order of Hovember 24, 1914, had been taken, and thereafter [921]*921the case had been duly stricken from the calendar, it was too late, in effect, to make a new order in the guise of a resettled order containing provisions not requested upon the original motion. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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Per Curiam:

On Hovember 24,1914, an order was made by the Special Term granting a motion for leave to serve an amended complaint upon payment of costs, the complaint to be served within five days, the defendant to have twenty days to answer or otherwise act. The amended complaint was duly served Hovember twenty-fifth, the answer and counterclaim received December fifteenth, and the reply duly served on December twenty-first. When the ease appeared for trial upon the calendar the defendant moved to strike the same from the calendar upon the ground that no note of issue or notice of trial had been filed or served after the creation of the new issues, no reservation having been made in the order permitting the said amendment directing that the said ease retain its place upon the calendar. This motion was granted by an order of the Trial Term, dated January 5, 1915. Thereafter, on February 4, 1915, the Special Term made an order purporting to resettle the order of Hovember 24, 1914, allowing the service of the amended complaint by adding thereto: “the original notices of trial of both parties and note of issue to stand as and for the new issue joined.” From this order the defendant appeals. We think that as all of the proceedings contemplated and authorized by the original order of Hovember 24, 1914, had been taken, and thereafter [921]*921the case had been duly stricken from the calendar, it was too late, in effect, to make a new order in the guise of a resettled order containing provisions not requested upon the original motion. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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Bluebook (online)

167 A.D. 920, 152 N.Y.S. 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skeele-coal-co-v-baker-nyappdiv-1915.

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