The fact is not denied that after the note of issue had been filed, notice of trial served and claim to a preference made, some of the defendants served, as they had a right to do, an amended answer. This changed the date of issue. The time when the last pleading is served determines and fixes the date of issue and the clerk must place the case upon the calendar according to that date. (Code Civ. Proc. § 977.) Any delay caused by the amendment, by reason of the necessity of filing a new note of issue, was a proper consideration for the court when leave was given to the defendants to amend. (Ziegler v. Trenkman, 31 App. Div. 305.)
It is suggested that the amended answer was simply an amplification of the original one and did not change the issue and, therefore, there was no necessity for filing a new note of issue. The answer to this suggestion is that so long as the amended answer remained as the pleading of the defendants who served it, that determined the date of issue. The date of issue having been changed by such amended answer the case was improperly upon the day calendar, having been noticed and note of issue filed before the service of such amended answer. The order for a preference, therefore, should have been denied.
The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Present — Ingraham, McLaughlin, Laughlin, Clarke and Scott, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.