
    (97 App. Div. 532.)
    MUGLIA v. ERIE R. CO.
    (Supreme Court, Appellate Division, First Department.
    November 11, 1904.)
    1. Pleading—Answer—Amendment—Notice of Trial—Note of. Issue—Premature Filing.
    Where plaintiff served a notice of trial, and filed a note of issue 17 days before the original answer was served, and the case was therefore improperly on the calendar, plaintiff was not entitled to have an amended answer stricken, though it changed the issues raised by the original answer filed, defendant having previously agreed, in order to obtain an extension of time to answer, that the issue should be as of the date the summons and complaint were served.
    
      2. Same—Stipulations—Effect.
    A stipulation entered into as a condition of an extension of time to answer that the issue should be as of the date the summons and complaint were served was effectual only to allow the cause to take its place among the issues of the month for which the notice of issue could properly be filed as of the date when the answer was originally due, and did not authorize the placing of the cause on the trial calendar before it was at issue.
    
      3. Same—Amendment.
    Under Code Civ. Proc. § 542, providing that within 20 days after an answer is served, or at any time before the period for answering has expired, the pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, unless it appears that the pleading was amended for the purpose of delay, etc., defendant was entitled to amend its answer once of course within the time specified, in good faith, though it raised issues other than those tendered by the original answer, etc.
    Appeal from Special Term, New York County.
    Action by Giovanni Muglia, as administrator, etc., against the Erie Railroad From an order out defendant’s amended answer, it appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O’BRIEN, and EAUGHLIN, JJ.
    Winfred T. Denison, for appellant
    Edward J. Kelly, for respondent.
   O’BRIEN, J.

The summons and complaint were served on April 26, 1904, and thereafter the defendant obtained an order extending its time to plead 20 days. On April 27, 1904, on the application of the plaintiff, the order granting the extension was amended by providing that the issue be as of the original date, namely, April 26, 1904; and on May 27, 1904, the plaintiff filed his note of issue and served his notice of trial for the June term, 1904. On May 14, 1904, the defendant served its answer, and on May 23, 1904, served its notice of trial for June, 1904, and the cause was duly placed on the June calendar. On the 2d day of June, 1904, the defendant served an amended answer, and the plaintiff then made a motion to strike out the amended answer unless the defendant would stipulate that the date of issue remain as if no amended answer had been served. This motion was granted, and from the order thereupon entered the defendant appeals.

There are two reasons why the order appealed from should not have been granted. The first is that the notice of trial, as stated, was served and the note of issue filed 17 days before the original answer was served. The case, therefore, was improperly upon the calendar; and, were it not that the defendant served a notice of trial for the June term, it could, upon motion, have had the cause stricken from the calendar, and this notwithstanding the fact that by order the court directed that the issue should be of the original date, namely, April 26, 1904. Conquest v. Barnes (Sup.) 4 N. Y. Supp. 496, and Harney v. Provident Savings Society, 41 App. Div. 410, 58 N. Y. Supp. 822, are authorities for the proposition that the power to strike out an amended answer cannot be exercised if the case is.not properly on the calendar.

It is contended that the defendant, in view of the order directing that the issue should be of the original date, was not in a position to oppose the motion to strike out the amended answer. Bearing upon this question we have the cases of Coler v. Lamb, 19 App. Div. 236, 46 N. Y. Supp. 117, and Pritchard v. Nederland Life Ins. Co., 38 App. Div. 109, 56 N. Y. Supp. 636. In the latter case it was said, speaking of a stipulation fixing the date of issue:

“All that the stipulation could do would be to allow the cause to take its place amongst the issues of the month for which the notice of issue could be properly filed as of the date when the answer was originally due. Notice of trial cannot be properly served until the case is at issue, and a note of issue can only be filed for a term at which the case is properly noticed for trial.”

The second reason why we think the order appealed from was improperly granted is because under section 542 of the Code of Civil Procedure the defendant was entitled to serve an amended answer as of course, and it is only when it is made to appear to the court that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term for which the case is or may be noticed, that the amended pleading can be stricken out. We have examined the affidavit presented upon behalf of the defendant, explaining the reason for the amendment, and have also noticed the difference between the issues thereby tendered, compared with those presented by the original answer, and we can see no basis for the conclusion that the amended answer was interposed in bad faith, and merely for purposes of delay. We have no desire to discourage efforts made for the speedy trial of causes, but we think in this case that in the zeal displayed by the plaintiff’s attorney, he evinced a disposition to unduly crowd the defendant.

We think the order appealed from should be reversed, with $10 costs and disbursements, and the motion to strike out amended answer should be denied, with $10 costs. All concur.  