Pritchard v. Nederland Life Insurance — 56 N.Y.S. 636

Majority

p. 636

(38 App. Div. 109.)

PRITCHARD v. NEDERLAND LIFE INS. CO., Limited.

(Supreme Court, Appellate Division, First Department.

March 10, 1899.)

Headnote

Striking Cause prom Calendar—Notice op Trial—Stipulation.

A cause should he stricken from the calendar on plaintiff’s motion, where the answer was not served until too late to notice the cause for trial and put it on the calendar, though plaintiff had stipulated, in extending the time to answer, that the issue should remain as of the time when the answer first became due.

Appeal from special term.

Action by William B. Pritchard against the Nederland Life Insurance Company, Limited. From an order denying a motion to strike the cause from calendar, plaintiff appeals.

Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLaughlin, and ingraham, jj.

L. Sturcke, for appellant.

W. W. Thompson, for respondent.

We think that this order should be reversed. The case was not at issue at the time the note of issue was filed and the case noticed for trial. An unverified answer had been served, which was subsequently returned, and was not reserved in the verified form which the plaintiff had a right to require, until too late to notice the cause for trial and put it upon the calendar for the December term, 1898. The fact that a stipulation had been entered into upon the part of the plaintiff, as to extending the time to answer, that the issue should remain as of the time when the answer first became due, in no manner affects the question raised upon this appeal. All that the stipulation could do would- be to allow the cause to take its place among the issues of the month for which the note of issue could be properly filed as of the date when the answer was originally due. Notice of trial cannot be properly served until the case is at issue, and a note of issue can only be filed for a term at which the case is properly noticed for trial. Leonard v. Faber, 31 App. Div. 137 , 52 N. Y. Supp. 772 .

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.