Conquest v. Barnes — 21 N.Y. St. Rep. 112

Majority

p. 112

John A. Conquest et al., Resp’ts, v. Frederick E. Barnes et al., App’lts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Pbacticb—When amended answeb stricken out—Code Civil Pbo.,. §540.

There must he proof before the court showing that a case was properly noticed for trial, and that by the service of an amended answer the plaintiff was rendered liable to lose the benefit of a term, to warrant the court in striking out an amended answer.

Appeal from order of the special term striking out an-amended answer with costs, on the ground that it was-made for the purpose of delay, whereby the plaintiff would, lose the benefit of a term.

H. Y. Stillman, for app’lts; M. D. Curtis, for resp’ts.

The difficulty with the order in they present casé seems to be that there was no proof before the-court that by the amended answer the plaintiff was rendered liable to lose the benefit of a term. •

The provision of the Code is that in the case of am amended pleading, if it is made to appear to the court that, the pleading was amended for the purpose of delay, and that the adverse party will lose the benefit of the term for which the case was noticed, the amended pleading will be-stricken out.

At the time of the making of this motion the case had not been noticed for trial for any term. It is true that, there had been an attempt to notice it for the June term,, but that notice of trial was returned by the defendant on the ground that the post office address of the attorney for the respondent was not properly subscribed thereon, and' therefore because of this irregularity the cause has never been noticed, because the provision of the Code undoubtedly means that it should be noticed so that the party serving the notice can move the case at the term.

It is not claimed on the part of the respondent that the-defendant was not correct in his practice in returning the-notice for the omission mentioned, and for this reason, the case not being noticed, one of the elements necessary for the exercise of this power by the court was absent, and the-making of the order was error.

The order should be reversed, with ten dollars costs and disbursements.

Daniels and Bartlett, JJ., concur.