
    Nicholas D. J. Murphy, Respondent, v. Anna E. Lyon, Appellant.
    Third Department,
    June 18, 1908.
    Practice — amended answer—new notice of trial and note of issue.
    Where, after plaintiff has noticed a cáse for trial and placed it on the calendar, the defendant, prior to the expiration of the time to do so, serves an amended answer, the plaintiff cannot thereafter move the case for trial and obtain a judgment without serving a new notice of trial and filing a new note of issue unless he first causes the amended answer to be stricken out.
    An amended answer cannot be stricken out except on notice to the defendant.
    Appeal by the defendant, Anna E. Lyon, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on .the 20th day of-January, 1908, denying the defendant’s motion to vacate a judgment theretofore entered herein.
    
      Emilie M. Bullowa, for the appellant.
    
      N. Frank O'Reilly and John D. Eckert, for the respondent.
   Chester, J.:

The plaintiff duly noticed the cause of action for trial at the Ulster December term, and placed the case upon the calendar of . the court for trial at that time. Thereafter and prior to the- expiration of the defendant’s time to serve an amended answer, the defendant duly served an amended answer setting up usury as a new and separate defense to the action. ¡No notice of trial was thereafter served, and the plaintiff served no notice of motion to strike out such amended answer. The plaintiff thereafter, in the absence of the defendant’s counsel, moved the case for trial and obtained the judgment which is involved on this appeal. The service of the amended answer destroyed the original issue noticed for trial, and the plaintiff was not authorized to proceed to trial without serving a new notice of trial and filing a new note of issue, unless he could first get rid of the amended answer. (Ostrander v. Conkey, 20 Hun, 422; Coler v. Lamb, 19 App. Div. 237; Ward v. Smith, 103 id. 377.)

In Haskin v. Murray, No. 1 (29 App. Div. 374) it is said: “ If it should be made to appear to the court, under section 542 of the Code, that the pleading was amended for the mere purpose of delay and that the-adverse party will thereby lose the .benefit of a term for which the cause is, or may be noticed, the amended pleading may be stricken out, but unless such amended pleading is so stricken out by the court, the case must be tried upon the amended pleadings, and can only be placed on the calendar after a notice of the trial of the issues raised by the amended pleadings has been served, and a note of issue has been filed.”

In New York Wire Co. v. Westinghouse Co. (85 Hun, 269, 271) it is said: “ If the amended answer in question was served in bad faith, simply for the purposes of delay, the Code points out the remedy which a party aggrieved is entitled to pursue. He may have it stricken out upon motion, and then the action proceeds upon the original pleading.”

The case of Minrath v. Teachers’ Land & Imp. Co. (21 N. Y. Supp. 204), cited by the respondent, is not a very well-considered case, and so far as it holds that the court may proceed to trial upon the oi’iginal notice of trial after the service thereafter of an amended answer, if it deems such amended answer to have been interposed in bad faith, must be deemed to. be overruled by the great weight and number of the authorities to the contrary, some of which have been above cited.

Appended to the brief of respondent’s attorney is his affidavit that the court, upon his request, at the trial, ordered the amended answer to be stricken out as having been interposed for delay. This affidavit forms no part of the record, and cannot be considered by us, and even if it could, there is no claim therein that the amended answer was stricken out upon notice to the plaintiff’s attorney, and it could not be properly stricken out without such notice, and the judgment entered'.on motion of such attorney does not even recite that it was stricken out.

There is also a motion made by the plaintiff to dismiss the defendant’s appeal from the judgment on the ground that it Was taken by default, and, therefore, not appealable. This motion need not be decided as we have reached the conclusion that the judgment must be vacated.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the ■ judgment granted, with ten .dollars costs, and with leave to the appellant to withdraw her notice of appeal from, the judgment,, without costs.

All concurred. ■

Order reversed, with ten dollars costs and disbursements, and motion to vacate the judgment granted, with ten dollars costs, and with leave to the appellant to withdraw her notice of appeal from the judgment, without costs.  