Romaine v. Bowdoin — 24 N.Y.S. 67

Majority

p. 67

(70 Hun, 366.)

ROMAINE v. BOWDOIN et al.

(Supreme Court, General Term, First Department.

June 30, 1893.)

Headnote

1. Motion to Strike Case from Calendar—Change of Issue.

A motion to strike a casé from the calendar, made when the case is regularly reached, will be granted where the issue represented on the calendar has been superseded by a new issue under an amended complaint and answer.

2. Date of Issue—Stipulation—Construction.

Where plaintiff, after the complaint has been served, inserts in a stipulation extending defendant’s time to answer, “Date of issue to be of this date,” the issue referred to is the issue to be joined by the service of the answer, and not that joined by a demurrer to the complaint.

Appeal from special term, New York county.

Action by Victoria A. Romaine against George S. Bowdoin and. others. From an order denying defendants’ motion to strike the case from the calendar, defendants appeal.

Reversed.

Argued before FOLLETT and PARKER, JJ.

Butler, Stillman & Hubbard, (Arthur H. Van Brunt, of counsel,) for appellants.

Redfield & Redfield, (Robert L. Redfield, of counsel,) for respondent.

This action being regularly reached on a call of the calendar in circuit court, the defendants moved that it be stricken therefrom, on the ground that the issue represented on the calendar had been superseded by a new issue, created by the service of an amended complaint and answer. Such was the fact, and a new note of issue and a new notice of trial were necessary to bring on for trial the issue presented by the amended pleadings.' Ostrander v. Conkey, 20 Hun, 421 . But the point was made on the motion, and is renewed here, that the usual practice had been waived, by stipulating that the date of issue should be December 29, 1891. We do not so understand the stipulation. At the time it was made the complaint had been served, and in extending defendants’ time to plead plaintiff’s attorneys inserted therein, “Date of issue to be of this date.” The issue referred to was, of course, the issue to be joined by the service of the pleading which the defendants were obtaining time to prepare. Subsequently the issue was joined by the service of a demurrer. It was afterwards tried, and the trial resulted in favor of the defendants. That issue, which was the one appearing on the calendar, was therefore at an end. It was with reference to it, and not to the issue subsequently created, that the parties stipulated.

The order should be reversed, with $10 costs and disbursements.