Dekarolis v. Enterprise Cabinet Co. ( 1930 )

Order denying motion of defendant Russell to strike cause from calendar, to vacate notice of restoration to day calendar, and to strike from the ex parte order of May 3, 1928, the provision that the ease retain its place upon the calendar, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Defendant, appellant, brought in as a party defendant by the service of a supplemental summons and complaint after the case was at issue and upon the Trial Term calendar of the court, is entitled to a notice of trial pursuant to the provisions of rule 150 of the Rules of Civil Practice and section 433 of the Civil Practice Act. The ex parte order, which directed the service of a supplemental complaint upon the appellant to bring him in as a party defendant, is not binding upon him in so far as it provides that the action retain its position on the Trial Term calendar of the court since he was not then a party to the action. His motion to strike the case from the calendar on the ground that no notice of trial had been served upon him should have been granted. (Stern v. Ide & Co., Inc., 212 App. Div. 714.) However, there need be no protracted delay of the trial, since plaintiff may apply to the court which controls the Trial Term calendar, after the case is properly upon the calendar, for such relief as may be appropriate under the circumstances. Kapper, Hagarty and Carswell, JJ., concur; Lazansky, P. J., and Young, J., dissent and vote to affirm upon the ground that, by accepting the order to serve an answer thereunder and by failing to move to modify, appellant waived his right to a notice of trial.