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Diebold v. Walter

89 A.D. 80 Court N.Y. App. Div. English

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p. 80
Louise Diebold, Respondent, v. Anna Walter and Emilib Lampe, Appellants.

Headnote

Calendar—restoration of a case to the calendar after amendment of the eomplaint — meaning of the words “ the case upon service of the answer to talce its regular place on the calendar."
YDiere an order of the Appellate Division, allowing the service of an amended complaint, provides that the defendant shall be allowed twenty days in which to answer such amended complaint, “the case upon service of the answer to take its regular place on the calendar and not to be restored to the day calendar,” an order made by the Special Term directing that the case be placed upon the call calendar preparatory to being placed on the day calendar is improper.
Appeal by the defendants, Anna Walter and another, from an order of the Supreme Court, made and entered in the office of the clerk of the county of New York on the 6th day of November, 1903, granting the plaintiff’s motion to place the case on the call calendar.
On the trial of this action a juror was withdrawn in order to enable the plaintiff to apply at Special Term for an amendment of the complaint. On such application at Special Term an order was made allowing the plaintiff to serve an amended complaint and providing “ that said defendants may answer the same within five days from the service of a copy of said order, and that this action be and the same is restored to the day calendar of this Court' in Trial Term thereof, for the first Monday of April, 1903, for trial.” On an appeal from this order the Appellate Division, by an order entered in June, 1903, affirmed the order allowing the plaintiff to serve an amended complaint as modified “ so as to allow the defendants twenty days in which to answer the amended complaint, the case, upon service of the answer, to take its regular place on the calendar and not to be restored to the day calendar.”
The amended complaint was served and issue was joined by the service of an answer. Thereafter a motion was made that t he cause be set down for trial on the call calendar of this Court for Eriday the 13th day of November, 1903.” The defendants opposed this motion upon the ground that this case, hi which a substantially new cause of action has been set forth in an amended complaint,
p. 81
which, under order of the court, was served upon the defendants, and the defendants given the statutory time to answer, cannot take its place on the regular calendar of the court, except by the service of the statutory notice of trial and the filing of a note of issue ; that the phrase in the opinion of' the Appellate Division, “not to be restored to the day calendar,” refers to a provision in the order appealed from, which restored the case to the day calendar. The motion was granted.
The present appeal is from the order granting it.
Alvin C. Cass, for the appellants.
George F. Lcmgbewi, for the respondent.

The question presented involved a construction of the order of this court made upon a former appeal (Diebold v. Walter, 83 App. Div. 254 ) wherein the terms upon which the plaintiff should be allowed to serve an amended complaint were fixed. We think that the learned judge at Special Term did not correctly construe our order. Thereby it was, in addition to other terms, provided that the defendant should be allowed twenty days in which to answer the amended complaint, “the case upon service of the answer to take its regular place on the calendar and not to be restored to the day calendar.” We think that the order appealed from which directed that it should be placed upon the call calendar preparatory to its being set down on the day calendar, was in violation of the terms of our order, and, for that reason, should not have been made.

The order accordingly should be reversed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Patterson, O’Brien, McLaughlin and Laughlin, JJ.

Order reversed, with ten dollars costs and disbursements.

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