Coler v. Lamb , 46 N.Y.S. 117 ( 1897 )

Rumsey, J.:

Before this action was at issue, the. defendants obtained from the court- twenty days’ extension.of time.to answer; • The order giving them that extension prescribed that the issue should be of the original date. The defendants served an answer upon which the cause was at issue, and it was regularly put upon the calendar for the March term. On the 23d day of February, 1897, the defen d- . ants served an amended answer setting up a counterclaim. The time for the plaintiff to reply to this - answer had not yet expired when, on the twénty-fifth of February, the defendants obtained an order to show cause why the cause should not be stricken from the calendar, on- which it had been ¡haced when at issue before. - On the third day of March this motion was denied, and this appeal was taken from the order denying that motion.

When the amended answer setting up a counterclaim l¡ad been served, the plaintiff had twenty days to reply to that counterclaim. Until that reply had been served, or the time to serve it had expired, the case was not at issue. Until the case was at issue, it could not be put ■ upon the calendar. As an original - proposition, therefore, this case could not have been put upon the calendar until after the reply had been served or the time to reply had expired. It was put on ,the calendar upon the issue framed by the original answer, and was properly there upon that issue; but' when that issue was destroyed by the service of a new answer containing a counterclaim, the case was no longer in a condition to be tried, and it ought not to have remained upon the calendar, because it could not be disposed of for lack of the proper pleadings to raise an issue upon wliiclf a trial could be had. (Ostrander v. Conkey, 20 Hun, 42l.) Before'it could be put upon the calendar ' after that; it was necessary that a new notice of trial should be served and a note of issue, tiled which should contain the things required by section 977 of the Code of Civil Procedure, some of which could not be stated until' after the last pleading had been served. The fact that, by the order extending the time to answer, the date of issue was to be of the time when the answer was first due, is of no importance. Even if that order was in force after the aprended answer had been served, it had nothing to do with the framing of an issue; it only affected the place where the case should be upon the calendar, to be indicated by a statement of the time as of which the issue should he dated. But, although the'issue when framed was to date as of the time when- the answer was due, there was no issue until the pleading had been actually served. For that reason the order appealed from was erroneous,' and the motion of the defendants to strike the case from the calendar should have been granted.

■ The order is reversed, with ten dollars costs, and disbursements,], and the motion granted, with ten dollars costs.

Van Brunt, . P. J., Williams, Ingraham and Parker, J J., concurred.

' Order reversed, with ten dollars costs and disbursements, and j motion granted, with ten dollars costs. • !.