Miner v. Galvanotype Engraving Co. , 61 N.Y.S. 1102 ( 1899 )

O’Dwyer, J.

Issue was joined January 4, 1898. The plaintiff served a notice of trial for the May term, 1898, but did not file any note of issue for that term. On January 18, 1899, the plaintiff filed his first and only note of issue. On February 2, 1899, the attorneys for the defendant received a notice of trial, dated February 1, 1899, for the first Tuesday in February, 1899, which was February 7, 1899. The plaintiff did not file any note of issue for the February term, 1899, or at any time after service of his notice of trial for February 7, 1899. The plaintiff did not serve any notice of trial for the January term, 1899, nor for any term for which he filed a note of issue. The defendant has not served any notice of trial since the plaintiff filed his note of issue. On October 25, 1899, and before this case had appeared on the day calendar, the defendant moved to strike the case from the calendar, and from the order denying the motion this appeal is taken.

Section 3162 of the Code of Civil Procedure requires a note of issue to be filed “ at least two days before the day, or the commencement of the term, for which the notice of trial or hearing is given,” and the plaintiff contends that the filing of the note of issue on January 18, 1899, twenty-five days before February 7? 1899, was a compliance with the section of the Code in question,, but the identical section goes on to say “ and, if it relates to the trial of an issue of fact, or of law, it must, in addition to the matters specified in section nine hundred and seventy-seven of this act, state the day or the term, for which the notice has been given.” A note- of issue cannot state the term for which the notice of trial has been served, if the notice of trial has not' been served prior to the filing of the note of issue.

The order appealed from should be reversed and motion granted, with ten dollars costs and disbursements.

Fitzsimons, Ch. J., concurs.

Order reversed and motion granted, with ten dollars costs.