p. 1102MINER v. GALVANOTYPE ENGRAVING CO.(City Court of New York, General Term.Headnote
Trial—Filing Note oe Issue.Code Civ. Proe. § 3162, requiring a note of issue to be filed “at least two days before the day or the commencement of the term for which the notice of the trial or hearing is given,” is not complied with where a note of issue of fact or law is filed prior to the notice of trial, and prior to the term for which the notice of trial is thereafter given, as the same section provides that such a note of issue must state the day and tike term for which the notice of trial has been given.
Appeal from special term.
Action by Adrian I. Miner against the Galvanotype Engraving Company. From an order denying a motion to strike the case from the general calendar, defendant appeals. Reversed.
Argued before FITZSIMONS, C. J., and O’DWYER, J.William J. Woods, for appellant.
Morris W. Hart, for respondent.
Issue was joined January 4,1898. Plaintiff served a notice of trial for the May term, 1898, but did not file any note of issue for that term. On January 18, 1899, plaintiff filed his first and only note of issue. On February 2, 1899, the attorneys for defendant received a notice of trial, dated February 1, 1899, for the first Tues
p. 1103day in February, 1899, which was February 7, 1899. Plaintiff did not file any note of issue for the February term, 1899, or at any time after service of his notice of trial for February 7,1899. Plaintiff did not serve any notice of trial for the January term, 1899, or for any term for which he filed a note of issue. Defendant has not served any notice of trial since plaintiff filed his note of issue. On October 25,1899, and before this case had appeared on the day calendar, defendant moved to strike the case from the calendar, and- from the order denying the motion this appeal is taken.
Section 3162 requires a note of issue to be filed “at least two days before the day or the commencement of the term for which the notice of trial or hearing is given”; and plaintiff contends that the filing of the note of issue on January 18, 1899, 25 days before February 7, 1899, was a compliance with the section of the Code in question. But the identical section goes on to say, “And if it relates to the trial of an issue of fact, or "of law, it must, in addition to the matters specified in section 977 of this act, state the day or the term for which the notice has been given.” A note of issue cannot state the term for which the notice of trial has been served, if the notice of trial has not been served prior to the filing of the note of issue.
The order appealed from should be reversed, and the motion granted, with $10 costs and disbursements.
FITZSIMONS, C. J., concurs.