
    Alfred Poindexter, Respondent, v. Henry Guy Carlton et al., Appellants.
    (City Court of New York, General Term,
    December, 1899.)
    City Court of the city of New York — Calendar — New notice of trial required by an amendment of a pleading.
    Where the defendant serves an amended answer after the plaintiff has served a notice of trial, the latter must serve a new notice in order to entitle the case to be placed on the calendar.
    Where the plaintiff fails to serve a new notice of trial, the defendant may wait until the case is reached on the day calendar, and may then move to strike it from the calendar.
    Appeal from an order of the Special Term, denying a motion majle by the defendant to strike the* case from the calendar.
    Burnham Kalisch, for appellant, Carlton.
    Hector W. Hitchings, for respondent.
   O’Dwyer, J.

On October 25, 1898, the defendant served his answer; October 26, 1898, the plaintifi served notice of trial for Hovember 4, 1898; October 31, 1898, the defendant served an amended answer. Ho further notice of trial was served, and in opposing a motion to advance the cause to the short cause calendar, the defendant in his affidavit distinctly made the point that the case was improperly on the calendar, inasmuch as no notice of the trial was served after the service of the amended answer. The defendant herein did not waive his right to the relief asked for, and having made the motion before the case was regularly reached, he was in ample time. He had a right to wait until the case was reached on .the day calendar, and then move to strike it therefrom, if irregularly thereon.

Order appealed from should be reversed and motion granted, with ten dollars costs and disbursements.

Fitzsimons, Ch. J., concurs.

Order reversed and motion granted, with ten dollars costs.  