152 N.Y.S. 325 | N.Y. App. Div. | 1915
On Hovember 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 Hovember twenty-fifth, the answer and counterclaim received December fifteenth, and the reply duly served on December twenty-first. When the ease 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 ease 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 Hovember 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 Hovember 24, 1914, had been taken, and thereafter