We think that this order should be reversed. The case was not ■ at issue at-the time the note of issue- was filed and the case noticed for trial. An unverified answer had been served which was subsequently returned, and was not re-served in the verified form, which the plaintiff had a right to require, until too late to notice the cause .for trial and put it upon the calendar for the December term, 1898. The fact that a stipulation had been entered into upon the part of the plaintiff as to extending the time to answer, that the issue should .remain as of the time when the answer first became due, in no manner affects the question liaised upon this appeal. All that the stipulation could do would be to allow the cause to take its place amongst the issues of the month for which the note of issue could be properly filed as- of the date when the answer was originally due. Notice of trial cannot be properly served until the case is at issue, and a note of issue can only be filed for a term at which the case is properly noticed for trial. (Leonard v. Faber., 31 App. Div. 137.)
The order appealed from should be reversed,, with ten dollars costs and disbursements, and the motion, granted, With ten dollars costs.
■Barrett, Rumsey, Ingraham and McLaughpin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements,. and motion granted, with ten dollars costs.'