Giovanni Muglia, as Administrator, etc., of Giuseppe Fragale Deceased, Respondent, v. Erie Railroad Company, Appellant

Giovanni Muglia, as Administrator, etc., of Giuseppe Fragale Deceased, Respondent, v. Erie Railroad Company, Appellant. Bate of issue—order that an issue he of a certain date—power to strike out an amended answer unless the date of issue remain—case improperly on calendar — . right to serve an amended answer, of course — striking a case from the calendar— /effect of the moving party homing noticed the case for trial. The summons and complaint in an action were, served April 6,1904, and thereafter the defendant' obtained an order extending its time to plead for twenty days. April 27, 1904, the order granting the extension was amended by pro- ■ viding that the date of issue should -remain as of April 26, 1904. April 27, 1904, the plaintiff filed his note of issue and served his notice of trial for the June term. May 14, 1904, the defendant served its answer, and on May 23, 1904, served a notice of trial for the June term and the case was duly placed on the June calendar. June 2, 1904, the defendant served an amended answer. The plaintiff then made a motion to strike out the amended answer unless the defendant would stipulate that -the date of issue, should remain as if no amended answer had been served. Held, that an order granting the plaintiff’s motion should be reversed, for the reasons, first, that as the plaintiff’s note of issue was filed seventeen days before the original answer was served, the case was improperly upon the calendar, and that the power to strike out an amended answer cannot be exercised if the case is not properly upon the calendar; second, that, under section 542 of the Code of Civil Procedure, the defendant was entitled to serve an amended answer as of course, and .that it is only when it is made to appear (which it was not in the case at bar) that the pleading was amended for the purpose of delay, and that the adverse party will lose the benefit of a term, that the amended pleading can be stricken out; That the defendant was not precluded by the order directing that the date cf issue should remain as of April 26, 1904, from opposing the motion to strike out the amended answer. Semble, that were it not for the fact that the defendant had served a notice of trial for the June term it could have had the cause stricken from the calendar, notwithstanding that the court had directed that the issue should remain as of April 26, 1904. Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of June, 1904, granting the plaintiff’s motion to strike out the amended answer of the defendant, unless the latter should stipulate that the date of issue should remain as if no amended answer had been served. Winfred T. Denison, for the appellant. Edward J. Kelly, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: The summons and complaint Were served on April 6, 1904, and thereafter the defendant obtained an order extending its time to plead twenty days. On April 27, 1904, on the application of the plaintiff, the order granting the extension was amended by providing that the issue be as of the original date, namely, April 26, 1904, and on April 27,1904, the plaintiff filed his note of issue and served his notice of trial for the June term, 1904. On May 14, 1904, the defendant served its answer, and on May 23, 1904, served its notice of trial for June, 1904, and the cause was duly placed on the June calendar. On the 2d day of June, 1904, the defendant served an amended answer, and the plaintiff then made a motion to strike out the. amended answer unless the defendant would stipulate that the date of issue remain as if no amended answer had been served. This motion was granted, and from the order thereupon entered the defendant appeals. There are two reasons why the order appealed from should not have been granted. The first is that the notice of trial, as stated, was served and the note of issue filed seventeen days before the original answer was served. The cáse, therefore, was improperly upon the calendar; and were it not that the defendant served a notice of trial for the June term, it could upon motion have had the cause stricken from the calendar, and this, notwithstanding the fact' that by order the court directed that the issue should be of the original date, namely, April 26,1904. Conquest v. Barnes (21 N. Y. St. Repr. 112) and Harney v. Provident Savings Society (41 App. Div. 410) are authorities for the proposition that the power to strike out an aménded answer cannot be exercised if the case is not properly on the calendar. It is contended that the defendant, in view of the order directing that the issue should be of the original date, was not in a position to oppose the motion to strike out the amended answer. Bearing upon this question, we have the cases of Coler v. Lamb (19 App. Div. 236) and Pritchard v. Nederland Life Ins. Co., No. 1 (38 id. 109). In the latter case it was said, speaking of a stipulation fixing the date of issue : “ All that the stipulation could do would be to allow the cause to take its place amongst the issues of the month for which the noté of issue could be properly filed as of the date when the answer was originally due. Notice of trial cannot be properly served until the case is at issue, and a note of issue can only be filed for a term at which the case is properly noticed for trial.” p The second reason why we think the order appealed from was improperly granted' is because, under section 542 of the Code of Civil Procedure, the defendant was entitled to serve an amended answer as of course, and it is only when it is made to appear to the court that the pleading was amended for the purpose of delay and that the adverse party will thereby lose the benefit of a term for which the case is or may be noticed, that the amended pleading can be stricken out. We have examined the affidavit presented upon behalf of the defendant, explaining the reason for the amendment, and have also noticed the difference between the issues thereby tendered, compared. with those presented by the original answer, and we can see no basis for the conclusion that the amended answer was interposed in bad faith and merely for purposes of delay. We have no desire to discourage efforts made for the speedy trial of causes, but we think in this case that, in the zeal displayed by the plaintiff’s attorney, he evinced a disposition to unduly crowd the defendant. We think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to strike out the amended answer should be denied, with ten dollars costs. Van Brunt, P. J., Patterson, Hatch and La'ughlin, JJ., concurred. Order reversed, with ten dollars costs, and motion denied, with ten dollars costs.