
    Tweedy, Pl’ff, v. United Life Insurance Association, Def't.
    
      (New York Common Pleas, Special Term,
    
    
      Filed February 27, 1895.)
    
    Trial — Note of issue.
    Where the plaintiff has waived the benefit of an order allowing a note of issue to be filed nunc pro tuna obtained without notice, by making a new motion on notice for leave to file the note of issue nunc pro tuna, a motion by defendant to strike the cause from the calendar will be granted.
    Motion to strike the cause from the calendar.
    
      DeLancey Nicoll, for pl’ff; Harry Wilber, for deft.
   Daly, C. J.

The court had power to relieve the plaintiff from the consequences of his mistake in filing the note of issue for November, 1893, in the wrong office, by ordering it to be filed nunc fro tune in the office of the cleric of this court, and thus supply his omission to place the cause upon the calendar for same term for which it had been noticed for trial. Code, § 724. But the order which the plaintiff obtained for that purpose was irregular, because applied for without notice to the defendant. It was valid, however, until' set aside; and as its effect was to place this cause upon the general calendar, the same as if a note of issue had been filed ‘in due time, the motion now made by defendant to strike the cause from the calendar cannot be granted. As the plaintiff, however, has waived the benefit of his former order by now making a new motion upon notice for the same relief, viz. that the same note of issue be filed nunc pro tune as of October 25, 1893, for the November term, 1893, the matter comes up for disposition upon the merits; and I will grant the application upon condition that the trial be stayed until the defendant have an opportunity to move for the commission which he desires, and for a stay of proceedings. The case may retain "its present number, and will be marked off term.  