Opinion
December, 1899.
C. Bidwell, for motion.
C.I. Schampain, opposed.
The action is on a promissory note. The amended answer sets up the Statute of Limitations. The facts are as follows, viz.: The summons and complaint was served on August twenty-third, the complaint being unverified. An unverified answer was served on September twelfth. The plaintiff served notice of trial on September eighteenth. An amended answer, unverified, was served on October second. No notice of trial was served subsequent to the amended answer. Neither the first nor the second answer was returned as being unverified, and no intimation given that plaintiff was to treat them as a nullity. On November tenth, without notice to the defendant, an inquest was taken, on the ground that the answers were unverified and that there was no affidavit of merits, under rule 28 of the General Rules of Practice, providing that inquests may be taken in actions out of their regular order on the calendar, where the answer is unverified and no affidavit of merits filed. Defendant now moves to set aside said inquest as irregular. As the complaint was not verified, there was no obligation upon the defendant to verify the answer. See Williams v. Riel, 5 Duer, 603. Moreover, even if the complaint had been verified, plaintiff could have treated the unverified answers as a nullity only upon giving notice, with due diligence, to the defendant's attorney of his election so to do, which he failed to do in the present case. See Code, § 528. The plaintiff's notice of trial was void, for the reason that it was served before the service of the amended answer. The issues created by the service of the first answer were destroyed by the service of the amended answer, and a new notice of trial and a new note of issue were necessary to enable the plaintiff to take defendant's default. See Yates v. McAdam, 18 Misc. 295. The fact that no counterclaim was set up in the amended answer makes no difference. The Code, in section 977, provides that at any time after joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial, and that the party serving the notice must, at least twelve days before the commencement of the term, file with the clerk a note of issue, stating, among other things, the time when the last pleading was served. In the case at bar the last pleading was the amended answer. The notice of trial and the note of issue must be for the same term of court. See Bruxey v. Burke, 21 Misc. Rep. 564. The note of issue, therefore, for the October term, for which the notice of trial was served, must have been filed at least twelve days before the commencement of that term, and, consequently, some days before the service of the amended answer. It is very clear, therefore, that the note of issue could not have stated the time when the last pleading was served. The case was, consequently, improperly upon the calendar. See Yates v. McAdam, supra, p. 296. The motion is granted, with costs.
Motion granted, with costs.