Majority
p. 412(24 Civ. Proc. R. 259.) TWEEDY v. UNITED LIFE INS. ASS’N. (Common Pleas of New York City and County, Special Term. February 27, 1895.)
Headnote
Practice in Civil Cases—Motion to Strike Cause from Calendar.An order allowing a note of issue to be filed nunc pro tunc, though irregular because obtained by plaintiff without notice to defendant, is valid until set aside; but where plaintiff has waived the benefit of it by making a new motion on notice for leave to file the note of issue nunc pro tunc, a motion by defendant to strike the cause from the calendar will be granted.
Action by Tweedy against the United Life Insurance Association. Defendant moves to strike the cause off the calendar.
Granted.
DeLancey Nicoll, for plaintiff.
Harry Wilber, for defendant.
The court had power to relieve the plaintiff from the consequences of his mistake in filing the note of issue for November, 1893, in the wrong office, by ordering it to be filed nunc pro tunc in the office of the clerk of this court, and thus supply his omission to place the cause upon the calendar for same term for which it had been noticed for trial. Code, § 724. But the order
p. 413
which the plaintiff obtained for that purpose was irregular, because applied for without notice to the defendant. It is valid, however, until set aside; and as its effect was to place this cause upon the general calendar, the same as if a note of issue had been filed in due time, the motion now made by defendant to strike the cause from the calendar cannot be granted. As the plaintiff, however, has waived the benefit of his former order by now malting a new motion upon notice for the same relief, viz. that the same note of issue be-' filed nunc pro tunc as of October 25, 1893, for the November term, 1893, the matter comes up for disposition upon the merits; and I will grant the application upon condition that the trial be stayed until the defendant have an opportunity to move for the commission which he desires, and for a stay of proceedings. The case may retain its present number, and will be marked off term.