
    Edwin Knowles, Respondent, v. Paul Lichtenstein, Appellant.
    Condition, of an extension of time to answer, that a short notice of trial be accepted. — su'ch notice is applicable to an issue framed by a subsequently-served amended answer and a reply.
    
    Where an order, extending the time to answer, contains a provision that the issue shall be of a certain date, and that the defendant shall accept short notice of trial for a specified term, and such notice of trial is served and received without being returned as premature or irregular, and the cause is placed on the calendar of that term, the defendant thereby waives any irregularity and con-, sents to the applicability of such notice, either to the original issue as framed by the service of the original answer or to an issue framed by an amended answer subsequently served and the reply thereto.
    
      Appeal by the defendant, Paul Lichtenstein,, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of' the clerk of the county of Kings on the 30th day of June, 1898, granting the defendant’s motion to vacate and set aside an inquest taken and the judgment entered therein and the supplementary proceedings thereunder, upon condition that the defendant should give an undertaking in the sum of $15,000 for the payment of any judgment that the plaintiff might recover in this action against the defendant.
    
      David Neumark, for the appellant.
    
      Hugo Hirsh, for the respondent.
   Goodrich, P. J.:

The action was brought upon a written guaranty, executed by the defendant, that one Alexandra Viarda, an actress, would perform her written agreement to play an engagement at the plaintiff’s Fifth Avenue Theatre in New York. The complaint alleged a breach of.the contract and demanded judgment for $10*648.24, •'with interest. Before the time for answering expired, and on January 24, 1898, the defendant obtained an order extending his time to answer. The order contained a clause that the issue was to be of January twenty-fourth, the date when the time to answer the complaint expired, and that the defendant was to accept short notice of trial for the February term, then less than fourteen days distant. Notice of trial for the February term was served by the plaintiff on the next.day and the cause placed on the February calendar. The answer was not served till February third. On February nineteenth notice of motion was given to place the issue, as a short cause, on the special calendar for the trial of short, causes. Before the motion was argued, and on February twenty-third, the .defendant served an amended answer setting, up a counterclaim, to which the plaintiff served a reply on February twenty-eighth. The defendant’s attorney did not appear to oppose the motion and it was granted by default on March fifth and the cause ordered on the calendar of March eleventh for trial. On March eighth the defendant obtained an order to show cause, returnable on March eleventh, why the order should not be vacated.

When the case was called for trial on March eleventh the defendant appeared at the call of the calendar and stated the pendency of the motion on that morning and asked, for an' adjournment of the trial, which the court refused. The motion to vacate was immediately argued at Special Term and denied. The cause, however, was not reached for trial till March twenty-fifth, when the motion to strike it from the calendar was renewed and’ denied, an inquest taken, and a judgment entered thereon for $11,435.73. No exception was taken to the denial'of the motion for an adjournment. Other motions were made, hut it is not important to state any of the proceedings except those on which the present appeal is founded.

On June twenty-fifth the defendant obtained an order to show cause why the inquest, judgment and supplementary proceedings which had been issued thereon should not be vacated and set aside. Voluminous affidavits were used on the argument and an order was entered granting the motion upon condition that the defendant should give an undertaking in the sum of $15,000 for the payment of any judgment which the plaintiff might obtain, and in case of a failure of the defendant to give such -undertaking the motion-was denied. From this order the defendant appeals.

His contention is that the inquest was irregular, on the ground that, as the defendant had a legal right to amend his answer within twenty days after its service, the.plaintiff noticed his cause “ at the peril of having his notice go for nothing, if his adversary amends his pleading, and thus destroys the issue formed; ” that, as an amended answer and a reply thereto were served, there was no notice of trial of the real issue; that an issue cannot be tried without notice ; that, consequently, there was no valid inquest or judgment, and that the court had no power to impose, as a condition of vacating an invalid judgment, t'lie giving of the undertaking.

The record shows that there have been numerous supplementary proceedings against the defendant, none of which appear to have resulted in benefit to the judgment creditor; and in the plaintiff’s supplementary proceedings, which were commenced on May twentieth and closed on June ninth, the insolvency of the defendant was apparent."

There is no question, that the court has inherent power over its own judgments, irrespective of and beyond sections 724 and 1283 ■ of the Code of Civil Procedure, which-provide for relieving a person from'judgments. But it may not be said that if the judgment was so irregularly obtained asi to be without judicial authority and, therefore, void, the court had power .to impose- as a condition of •vacating it the giving of an undertaking to pay any judgment subsequently obtained in the action.

Assuming that-the Code requires the service of a notice of trial after the final framing of the: issues to be tried, as,, for instance, in the present case, after the service of the reply to the amended answer, we are brought to the question whether the defendant- has donó anything by which the original notice of trial takes effect upon the issue framed by the amended answer and reply.' We hold that as the order extending the time to answer contained a provision that the issue should be of the date of January twenty-fourth, and that the defendant should accept notice of trial for the February term, without objection, and as such notice was served and received witA out being returned as premature or irregular, he waived any irregularity and consented to its applicability either to the original issue or to the issue f ramed by. the- amended answer and the reply thereto.' He accepted the benefit of - the order and, having done so, cannot be permitted to repudiate any of its burdens. . The cause was regularly on the trial calendar and regularly noticed for the February term, and the inquest! was regularly taken.

This appeal is taken on the ground that the application to the Special Term was a matter of right and not of favor. This view, as we have seen, is erroneous and disposes of the present appeal.

The order is affirmed, with ten dollars costs and disbursements!

All concurred.

Orders affirmed, with ten dollars' costs and disbursements.  