Opinion
March, 1915.
Present — Ingraham, P.J., McLaughlin, Laughlin, Clarke and Scott, JJ.
On November 24, 1914, an order was made by the Special Term granting a motion for leave to serve an amended complaint upon payment of costs, the complaint to be served within five days, the defendant to have twenty days to answer or otherwise act. The amended complaint was duly served November twenty-fifth, the answer and counterclaim received December fifteenth, and the reply duly served on December twenty-first. When the case appeared for trial upon the calendar the defendant moved to strike the same from the calendar upon the ground that no note of issue or notice of trial had been filed or served after the creation of the new issues, no reservation having been made in the order permitting the said amendment directing that the said case retain its place upon the calendar. This motion was granted by an order of the Trial Term, dated January 5, 1915. Thereafter, on February 4, 1915, the Special Term made an order purporting to resettle the order of November 24, 1914, allowing the service of the amended complaint by adding thereto: "the original notices of trial of both parties and note of issue to stand as and for the new issue joined." From this order the defendant appeals. We think that as all of the proceedings contemplated and authorized by the original order of November 24, 1914, had been taken, and thereafter the case had been duly stricken from the calendar, it was too late, in effect, to make a new order in the guise of a resettled order containing provisions not requested upon the original motion. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.