Wallace v. Syracuse, B. & N. Y. Railroad
Appellate Division of the Supreme Court of the State of New York
Appeal frbm trial term, Cortland county. Action by Alvin D. Wallace against the Syracuse, Binghamton and New York Bailroad Company. From order denying motion to strike the cause from the calendar, defendant appeals. Beversed.
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Appeal frbm trial term, Cortland county. Action by Alvin D. Wallace against the Syracuse, Binghamton and New York Bailroad Company. From order denying motion to strike the cause from the calendar, defendant appeals. Beversed. The defendant’s time to answer, which had been extended by order, expired on the 10th day of January, 1898. At 2 o’clock in the afternoon of that day, and before the service of an answer, the plaintiff served a notice of trial for the Cortland trial term appointed to be held on the 24th day of January, 1898, which the defendant forthwith returned tó plaintiff’s attorneys…
1Opinion of the Court
PEB CURIAM.
Section 977 of the Code of Civil Procedure provides that “at any time after the joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice -of trial.” Under the provisions of this section, the procedure of the plaintiff in attempting to serve a notice of trial before the defendant had served its answer was unauthorized. At the time of such attempted service no issue had been joined, and there was no issue to be noticed for trial. The defendant’s attorneys, therefore, were authorized to return the notice, as they did, at 3…
2Cases cited3 opinions
- Marvin v. . MarvinNew York Court of Appeals · 1878
- Prentiss v. . BowdenNew York Court of Appeals · 1895
- Prentiss v. BowdenThe Superior Court of the City of New York and Buffalo · 1894