
    Victoria Mangone, Plaintiff, v. The Metropolitan Street Railway Co., Defendant.
    (Supreme Court, New York Trial Term,
    November, 1897.)
    Notice of trial — When to be served — Waiver of irregularity — Laches,
    Where a case has been noticed for trial by the plaintiff under a notice never returned by the defendant, has appeared twice on the calendar, and has been once adjourned upon the defendant’s motion, it is too late for him to move to strike the case from the calendar upon the ground that the notice of trial served was irregular because-it was a notice for a term long subsequent to that for which the note of issue had been filed.
    Motion to strike cause from calendar.
    Henry A. Robinson, for motion.
    Geo. H. McAdam, opposed.
   Gildersleeve, J.

This case appeared on the calendar on October 8, 1897, and was, on defendant’s motion, adjourned to November 12., 1897. On October 18, 1897, plaintiff served a notice of tidal on defendant’s attorney for the November Term of 1897, which notice was accepted by said attorney for defendant, and has never been returned by him. On November 12, 1897, the case again appeared on the calendar, and defendant, thereupon, for the first'time, made this motion to strike it therefrom, for the irregularity in serving the notice of trial for ,a term long subsequent to that for -which the note of issue was filed. See Siefke v. Siefke, 21 Misc. Rep. 407. It seems ,to me that defendant’s laches in waiting until the cause had apppeared for the second time on the calendar before taking advantage of plaintiff’s failure to serve a notice, of trial, together with defendant’s neglect to return the notice of trial subsequently served, combined with defendant’s action in moving, when the cause first appeared on the calendar, to have it adjourned to November 12, 1897, operate as a waiver of the irregularity charged. See Stanfield v. Stanfield, 21 Misc. Rep. 409; Haberstich v. Fischer, 6 Civ. Pro. 82.

Motion denied, and cause set down on Friday’s Calendar, December 10, 1897.

Motion denied.  