
    William Bruxey, Plaintiff, v. Luke A. Burke et al., Defendants.
    (Supreme Court, New York Trial Term,
    November, 1897.)
    A notice of trial, served after the filing of note of issue, is irregular and cannot be amended nunc pro tunc.
    A. note of issue and a notice of trial must be for the same term of the court; and where the plaintiff does not serve a notice of trial until nineteen months after he had filed his note of issue, the court ■ cannot, against the objection of the defendant, permit him to amend his note of issue nunc pro tunc, hut must strike the case from the calendar.
    Motion to strike cause from the calendar, and counter motion to amend note of issue nunc pro tunc.
    
    Louis F. Reed, for plaintiff.
    Blumenstiel & Hirsch (A. Blumenstiel, of counsel), for defendants.
   Gildersleeve, J.

This is a motion to strike the causé from the calendan for the plaintiff’s failure to serve a notice of trial until some nineteen months after he had filed his note of issue herein. The plaintiff, on the- other hand, makes a counter motion to amend the note of issue nunc pro tunc as for the November Term of 1897, and to have the cause.advanced on the calendar. The defendant’s motion is well taken. The cases of Gowing v. Levy, 17 N. Y. Supp. 771, and National Carbonating Co. v. Standard Aerating Co., Law Journal of October 27, 1896, have established the rule in this department that a note of issue and a notice of trial must be for the same term. In the first of these cases the note was filed for a term previous to that for which the notice was served; and in the sécond the note was filed for a term subsequent to that for which the notice was served. In both cases it was held that the notice was ineffectual, and that the cause could not be moved for trial by virtue of its service. - With regard to the plaintiff’s motion,, it is true that in actions where a-new note and a new notice are rendered necessary by reason of the .service of amended pleadings, - it has been held that the note may be amended nunc pro tunc\ where a proper notice has been served subsequent to the service of the "amended pleadings. See Yates v. McAdam, 18 Misc. Rep. 296, and cases there cited. But in this case no notice was served until after the appearance of the cause on the calendar and the making of the motion to strike it therefrom. Such notice is clearly improper and null. A notice will not be dispensed with except as a condition for granting some favor or concession to the other side. Yates v. McAdam, supra. The other side, however, ask no favor, and the court cannot force some favor upon them as a condition for them waiving the notice of trial. It therefore follows that plaintiff’s motion must be denied and the defendants’ motion granted. This cause must be stricken from the calendar.

Ordered accordingly.  