Majority
p. 626McBride et al. v. Langan et al. (Circuit Court, New York County. May, 1890.)
Headnote
Notice of Trial—Amended Pleadings.The service of an amended complaint and the answer thereto raises a new issue which must be noticed for trial, where the order granting the amendment did not require as a condition that the notice of trial theretofore served should stand.
Action by Harry McBride and Charles F. Droste, partners, doing business as produce commission merchants, under the firm name of McBride & Co., against Patrick T. Langan, George E. De le Ree, and Joseph P. Langan, partners under the firm name of P. T. Langan & Co., for the price of goods sold and delivered by plaintiffs to defendants. Pursuant to leave previously granted, (10 H. Y. Supp. 554,) plaintiff withdrew a juror at the trial of the cause, and amended his complaint, and now moves to have the case restored to the day calendar, and set for trial. See, also, 10 H. Y. Supp. 552.
Francis W. Judge, Jr., for plaintiffs. J. Woolsey Shepperd, for defendants.
By the service of the amended complaint in this action, and the answer to that amended complaint, a new issue was raised which must be noticed for trial. Undoubtedly the court had the power as a condition for granting the amendment to require that the former notice of trial should stand, but no such order was made. I think, therefore, the plaintiff must notice the case regularly for trial before it can be set down for trial.
Application denied.