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Black v. Continental National Bank

2 Abb. N. Cas. 332 Court N. Y. Supreme Court, First Department; Circuit, English

Delivered by Westbrook, J.

Contents

Majority

p. 332
BLACK v. CONTINENTAL NATIONAL BANK.
N. Y. Supreme Court, First Department; Circuit,
March, 1877.

Headnote

Calendar Practice.
Where leave to amend is granted, with no provision as to date of issue, the issues made by the amended pleading control the place on the calendar, unless the court, in its discretion, orders that it be advanced.[2]
Motion upon two days’ previous notice on the part of the plaintiff, to place cause on the day calendar, returnable at the circuit.
It appeared that after the cause had been once tried, a new issue had been raised by the service of an amended answer. The order granting leave to amend said nothing about the date of issue. The cause remained upon the calendar by its former number.
W. W. Goodrich, for the motion,—Contended that the original issue governed the place of the cause on the calendar.
p. 333
John W. Sterling, opposed,—Cited Bailey v. Spofford.[2]

As it was not made a part of terms of the amendment that the issue should date back, the right to advance is in the discretion of the court. Owing to recent employment of counsel, the trial should wait their convenience somewhat. The cause will be placed on the calendar for June term, and the court can then make such further order as to its trial as will be just.