
    Antoinetta Harney, Respondent, v. The Provident Savings Life Assurance Society of New York and Charles H. Jacquith, Defendants, Impleaded with William H. Harney, Appellant.
    
      Amended answer — motion to strike it out as interposed for delay — not granted where the defendant stipulates to try the case at the next term.
    
    In order to authorize the striking out, upon the ground that it was interposed for the purpose of delay, of an amended answer served on the twentieth day after the service of the original answer, and after the plaintiff had noticed the cause for trial at the next ensuing term, it must appear, not only that the amended answer was served for the purpose of delay, but that its effect would be to prevent a trial at that term; if the defendant stipulates to try the case at the term for which it was noticed, it is error to strike out the answer.
    Bartlett, J., dissented.
    
      Appeal by the defendant, William H. Harney, 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 3d day of May, 1899, striking out his amended answer.
    
      James E. Chandler, for the appellant.
    
      James Stikeman, for the respondent.
   Hatch, J.:

Issue was joined in this action by the service of an answer on the 29th day of March, 1899. On April seventeenth following, the plaintiff noticed the cause for trial at the May Special Term, which notice was received by the defendants’ attorney, with a verbal notice that it was without prejudice to his right to amend his answer. On the next day, being the eighteenth, and the last day upon which defendant had the right to amend, he served upon the plaintiff an amended answer. Thereupon the plaintiff moved to strike out such amended answer upon three grounds: First, that the pleading was amended for purposes of delay, and that the plaintiff would thereby lose the benefit of the term for which the cause was noticed for trial; second, to strike out the original and amended answers on the ground that the same were irrelevant and sham; and, third, that the plaintiff have judgment on the answers on the ground that they are frivolous. The court ordered that the amended answer be stricken out, but denied the motion for judgment.

It is, therefore, apparent that the court struck out the amended answer on the first ground stated, and denied relief based upon the other grounds; for, if it had determined that the answers were frivolous, it would have been required to direct judgment in favor of the plaintiff; or, if it had determined that they Avere sham or irrelevant, they would have been stricken out and the defendant have been allowed to enter judgment as in the case of default of pleading.

It is evident, therefore, that the only question we are called upon to consider is Avhether the court was right in holding that the amended answer Avas served for the purpose of delay, and that its effect Avould be to cause the plaintiff to lose the opportunity to try his case at the term for which it was noticed. By section 542 of the Code of Civil Procedure, the defendant had an absolute right to serve his amended pleading at the time when he did, assuming that he so served it without intending to accomplish a delay in the trial of the action, and that the plaintiff would not thereby lose the benefit of the term at which lie might try the same. (Cashman v. Reynolds, 123 N. Y. 138.) In order, therefore, to authorize the striking out of the answer on the ground of delay, it must not only appear that it was served for such purpose, but that its effect would be to prevent a trial at the ensuing term. (Conquest v. Barnes, 16 Civ. Proc. Rep. 268.) From the papers, it appears that the defendant, in answer to the plaintiff’s motion, offered to stipulate to try the cause at the term for which it had been noticed; consequently, there was no ground upon which the court was authorized to determine that the plaintiff would lose an opportunity to try her cause at the term for which it was noticed. The stipulation obviated any such question, and was a complete answer thereto, assuming that the effect of the service of the amended answer was to destroy the right to bring the cause to trial under plaintiff’s notice of trial. This being the existing condition, no case was made which authorized the court to strike out the answer as having been served for purposes of delay.

As to whether the answers were irrelevant, sham or frivolous, it is not necessary to determine, nor do we express any opinion or give any intimation thereon. So far as the action of the court below is concerned, it has sustained the answers in these respects, and no appeal has been taken from such determination; consequently, no such question is before us.

It follows that the order should be reversed and the motion denied.

All concurred, except Bartlett, J., dissenting.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs to abide the event.  