#### James A. Grant and Nettie L. Grant, Respondents, *v.*Cananea Consolidated Copper Company, Appellant, Impleaded with William C. Greene and Others, Defendants.

First Department,

December 11, 1908.

Trial —joinder of issues—notice of trial—new issue raised by reply — striking cause from calendar.

Issue is not joined until the last pleading which presents the issues to be tried is served, and the cause cannot be noticed for trial until that time.

Although on issue joined by the service of the answer the plaintiff had properly noticed the cause for trial, it will be stricken from the calendar where new issues were afterwards raised by the service of a reply which the plaintiff was ordered to make.

Where new issues are so raised, either party may move to strike the cause from the calendar.

Although the court in ordering a plaintiff to reply may impose the condition that the cause remain upon the calendar and be tried without further notice of trial, when it has failed to do so, the condition cannot be subsequently imposed so as to defeat a motion to strike the cause from the calendar.

Appeal by the defendant, the Cananea Consolidated Copper Company, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 6th day of November, 1908, denying the said defendant’s motion to sti-ike the case from the calendar.

*M. E. Harby,*for the appellant,

*Walter B. Raymond,*for the respondents.

Ingraham, J.:

This action was commenced on October 8,1906. This defendant appellant served its answer on the 18th of November, 1907. On December 4, 1907, the plaintiffs obtained an order for the service of the summons upon the defendant the Cobre Grande Copper Company by publication, and on January 17, 1908, the Cobre Grande Copper Company, appearing especially for the purpose, noticed a motion to vacate this order, which was subsequently denied. On January 2, 1908, the defendant appellant noticed a *78motion to require the plaintiffs to reply to various defenses set up in its answer. On February 7, 1908, the plaintiffs served a notice of trial for the March Special Term, and on the 8th of February, 1908, filed a note of issue for that term. Subsequently and on February 24, 1908, an order was granted requiring the plaintiffs to reply to certain defenses set forth in the amended answer of this appellant, which reply was served on March 7, 1908. Subsequently an order was granted requiring the plaintiffs to serve a further reply and such further reply was served on July 6, 1908, and on July 27, 1908, this defendant appellant served a demurrer to that reply, which demurrer has not been noticed for trial and the issue raised thereby is still undisposed of. Other motions were subsequently made in relation to the amended answer of the defendant appellant and the reply thereto which have not been decided. After this notice of trial was served and the case placed upon the calendar an order was entered .denying a motion of the defendant Cobre Grande Copper Company to vacate the order for the service of the summons by publication, but on appeal to this court that order was reversed and the order for service of the summons vacated. *(Grant*v. *Cobre Grande Copper Co.,*126 App. Div. 750). This being the situation, the defendant obtained, on October 15,1908, an order requiring the plaintiffs to show cause on the 16th of October, 1908, why this case should not be stricken from the Special Term calendar, and from the denial of that motion the defendant appeals.

It would appear that this notice of trial when served on February seventh was regular, as the action was at issue as to all the defendants, except the Cobre Grande Copper Company, and as the service on that company had been complete under the order of publication and the time had expired for it to appear and answer, that company was in default; but subsequently the plaintiffs served a reply to the defenses contained in the answer of this appellant and thereby new issues were created, upon the decision of which the final judgment depends.

Section 977 of the Code of Civil Procedure provides that at any time after joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial. Issue is not joined until the last pleading which presents the issues to be tried is served ; and assuming that the case was in a condition *79to be noticed for trial, when the notice of trial was served by the subsequent service of the reply, new issues were created .which had to be noticed for trial before the action could be placed upon the calendar and tried. The fact that the defendant had demurred to the reply did not affect the position of the action on the calendar, although the action would not be in a condition to be brought on for trial until the issue raised by that demurrer had been disposed of; but when new issues had been created by the service of the reply, either party was entitled to have the case stricken from the calendar to be placed again upon the calendar when the new issues raised by the pleading had been noticed for trial. The fact that the court had power to impose as a condition for granting the order requiring the plaintiffs to reply that the case should remain upon the calendar and be tried without further notice of trial, does not meet this objection, as the court imposed no such condition, and the order having been granted and acted on without imposing that condition, it is too late now to impose it.

We think, therefore, that the case was properly noticed for trial, as the case was then at issue, and no further pleading was then required, but that subsequently when a reply was served new issues were created which had to be noticed for trial before the action could be brought on for trial against the objection of any of the defendants and, therefore, either party to the action was entitled to have the action stricken from the calendar and for that reason the motion should have been granted.

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

McLaughlin, Clarke, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.