p. 366Victoria A. Romaine, Respondent, v. George S. Bowdoin and Others, Appellants.Headnote
Sew issue, created by cm amended complaint and answerold issue superseded a/nd stricken from, the calenda/r — stipulation.When the original issue in an action has been superseded by a new issue created by the service of an amended complaint and the answer thereto, after the original issue has been disposed of on demurrer, a new note of issue and a new notice of trial are necessary to bring on for trial the issue presented by the amended pleadings, and if the old issue thereafter appears upon the Circuit calendar, it should be stricken therefrom.
The requirement of a new note of issue and a new notice of trial is not to be deemed waived by a stipulation which, at a time when the defendants’ time to answer the original complaint was extended, fixed the date of issue, but which had no reference to the new issue.
Appeal by tbe defendants, George S. Bowdoin and1 others, from an order made at the New York Supreme Court Circuit, and entered in the office of the clerk of the city and county of New York on the 9th day of May, 1893, denying the defendants’ motion to strike the cause from the calendar.
Artlvwr S. Vcm Rrunt, for the appellants.
Robert L. Redfield, for the respondent.
This action being regularly reached on a call of the calendar in Circuit Court, the defendants moved that it be stricken therefrom on the ground that the issue represented on the calendar had been
p. 367superseded by a new issue- created by tbe service of an amended complaint and answer. Sucb was tbe fact, and a new note of issue and a new notice of trial were necessary to bring on for trial tbe issue presented by tbe amended pleadings.
(Ostrander v. Conkey, 20 Hun, 421 .) But tbe point was made on tbe motion, and is renewed bere, tbat tbe usual practice bad been waived by stipulating tbat the date of issue should be December 29, 1891.
"We do not so understand tbe stipulation. At the time it was made tbe complaint bad been served, and in extending defendants’ time to plead, plaintiff’s attorneys inserted therein: “ Date of issue to be of this date.” Tbe issue referred to Avas, of course, tbe issue to be joined by the service of tbe pleading which tbe defendant was obtaining time to prepare. Subsequently, tbe issue was joined by tbe seiwice of a demurrer. It was afterwards tried and tbe trial resulted in favor of tbe defendant. That issue, which was the one appearing on tbe calendar, was, therefore, at an end. It was with reference to it, and not to tbe issue subsequently created, tbat the parties stipulated.
Tbe order should be reversed, with ten dollars costs and disbursements.
Eollett, J., concurred.
Order reversed, with ten dollars costs and disbursements.