Sire v. Shubert

The answer herein was served on November 25, 1911, and the reply on December 1, 1911. After numerous appearances on the calendar the ease was marked “ready” on the day calendar of December 24, 1912. On December 31, 1912, an order to show cause was granted, returnable January 3, 1913, for an order permitting the defendant to serve an amended answer setting up the Statute of Limitations. The motion was granted upon payment of taxable costs without prejudice to the present position of the case on the calendar. We think after such delay the plaintiff should have been allowed the alternative of discontinuance, without costs. The order appealed from should, therefore, be modified by providing that the motion be granted upon the terms stated, with leave to the plaintiff to discontinue, without costs, and as so modified affirmed, without costs. Present—Ingraham, P. J., Laughlin, Clarke, Scott and Dowling, JJ. Order modified as stated in opinion, and as modified affirmed, without costs. Order to be settled on notice.