
    Van Norden Trust Company, as Executor, etc., Respondent, v. Edward F. Murphy, Individually, as Sole Surviving Executor of and Trustee under the Last Will and Testament of Hugh Smith, Deceased, and as Administrator, etc., of John H. Murphy, Deceased, and Others, Appellants, Impleaded with Benjamin L. M. Bates, and Others.
    First Department,
    April 10, 1908.
    Practice — date of issue — effect of amendment — preference.
    The time when the last pleading is served determines the date of issue and the clerk must place the cause upon the calendar according to that date. Hence, where the defendant amends his answer after note of issue filed and notice of trial served with .a claim to a preference, the date of issue is changed, and the case not being propeny upon the day calendar cannot be set down as a preferred cause.
    
      Appeal by the defendants, Edward F. Murphy, individually, etc., and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of February, 1908, directing that the trial of this action be preferred and set down for trial on a day specified.
    
      Lucius H. Beers, for the appellants Edward F. Murphy, individually, and as executor, and others.
    
      H. Aplington, for the appellants John J. O’Donohue and others.
    
      Edward W. S. Johnston, for the respondent.
   Per Curiam :

The fact is not denied that after the note of issue had been filed, notice of trial served and claim to a preference made, some of the defendants served, as they had a right to do, an amended answer. This changed the date of issue. The time when the last pleading is served determines and fixes the date of issue and the clerk must place the case upon the calendar according to that date. (Code Civ. Proc. § 977.) Any delay caused by the amendment, by reason of the necessity of filing a new note of issue, was a proper consideration for the court when leave was given to the defendants to amend. (Ziegler v. Trenkman, 31 App. Div. 305.)

It is suggested that the amended answer was simply an amplification of the original one and did not change the issue and, therefore, there was no necessity for filing a new note of issue. The answer to this suggestion is that so long as the amended answer remained as the pleading of the defendants who served it, that determined the date of issue. The date of issue having been changed by such amended answer the case was improperly upon the day calendar, having been noticed and note of issue filed before the service of such amended answer. The order for a preference, therefore, should have been denied.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Ingraham, McLaughlin, Laughlin, Clarke and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  