Levey v. Tribune Ass'n

This is a motion to strike the cause from the calendar for the reason that no new notice of trial has been served, and no note of issue filed, since the service of the amended answer. See Yates v. McAdam, 18 Misc. Rep. 295 , 42 N. Y. Supp. 109 . It seems, however, that when the case appeared on the calendar, on November 5, 1897, some time after the service of the amended pleading, the plaintiff moved to put over the case to December 24, 1897, and that the defendant’s representative, who was. in court to answer the call of the calendar, consented to this disposition of the case, or at least made no opposition thereto. Subsequently, when the case again appeared on the calendar, on December 24, 1897, defendant made this motion to strike the cause from the calendar. It is my opinion that the defendant’s laches in waiting until the cause had appeared for the second time on the calendar before taking advantage of plaintiff’s failure to comply with the rule laid down in Yates v. McAdam, supra, operate as a waiver of the irregularity charged. See Mangone v. Railway Co., 21 Misc. Rep. 565 , 48 N. Y. Supp. 644 ; Stanfield v. Stanfield, 21 Misc. Rep. 409 , 47 N. Y. Supp. 1010 . The motion must be denied, and the cause set down on Friday’s calendar, January 7, 1898.

Motion denied.