Diebold v. Walter

Full title: LOUISE DIEBOLD, Respondent, v . ANNA WALTER and EMILIE LAMPE, Appellants

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 1, 1903

89 App. Div. 80 (N.Y. App. Div. 1903)

85 N.Y.S. 437

Opinion

December, 1903.

Alvin C. Cass, for the appellants.

George F. Langbein, for the respondent.

Present — VAN BRUNT, P.J., PATTERSON, O'BRIEN, McLAUGHLIN and LAUGHLIN, JJ.

PER CURIAM:

The question presented involved a construction of the order of this court made upon a former appeal ( Diebold v. Walter, 83 App. Div. 254) wherein the terms upon which the plaintiff should be allowed to serve an amended complaint were fixed. We think that the learned judge at Special Term did not correctly construe our order. Thereby it was, in addition to other terms, provided that the defendant should be allowed twenty days in which to answer the amended complaint, "the case upon service of the answer to take its regular place on the calendar and not to be restored to the day calendar." We think that the order appealed from which directed that it should be placed upon the call calendar preparatory to its being set down on the day calendar, was in violation of the terms of our order, and, for that reason, should not have been made.

The order accordingly should be reversed, with ten dollars costs and disbursements.

PER CURIAM:

Order reversed, with ten dollars costs and disbursements.