
    BLACK v. CONTINENTAL NATIONAL BANK.
    
      N. Y. Supreme Court, First Department; Circuit,
    
    March, 1877.
    Calendar Practice.
    Where leave to amend is granted, with no provision as to date of issue, the issues made by the amended pleading control the place on the calendar, unless the court, in its discretion, orders that it be advanced.
    
    Motion upon two days’ previous notice on the part of the plaintiff, to place cause on the day calendar, returnable at the circuit.
    It appeared that after the cause had been once tried, a new issue had been raised by the service of an amended answer. The order granting leave to amend said nothing about the date of issue. The cause remained upon the calendar by its former number.
    
      W. W. Goodrich, for the motion,—Contended that the original issue governed the place of the cause on the calendar.
    
      
      John W. Sterling, opposed,—Cited Bailey v. Spofford.
    
    
      
       For the rules as to preferences in the calendar in the new Code of Civ. Pro. see §§ 378, 789, 795.
    
    
      
       In the case of Bailey v. Spofford, Judge Van Brunt, holding the circuit of the previous month of February, had decided that, “ the issues made by the amended pleadings are the only issues now in the case, and must control the place of the cause upon the calendar.” •The plaintiff has since [March 26, 1877,] been heard upon the same question at chambers before Mr. Justice Lawrence, who has given the following decision:—“The learned justice who denied the motion at circuit appears to have been entirely right in saying that the amended issues are the only issues before the court, and must control the place of the cause upon the calendar. There is therefore no reason for interfering with his direction in the order made granting the amendment. If the cause is entitled to a preference upon the circuit calendar, application for such preference must be made to the circuit .judge. Motion denied; no costs.”
    
   Westbrook, J.

As it was not made a part of terms of the amendment that the issue should date back, the right to advance is in the discretion of the court. Owing to recent employment of counsel, the trial should wait their convenience somewhat. The cause will be placed on the calendar for June term, and the court can then make such further order as to its trial as will be just.  