In the accompanying appeal between the same parties, this court has held that the National Surety Company was improperly stricken out as a party defendant, in view of defendants Glasser and Weinstein having set up a cause of action against it as an alternative to their counterclaim against plaintiffs, arising out of the disappearance of the same merchandise. (Gettinger v. Glasser, No. 2, 204 App. Div. 829.) Under the provisions of sections 237, 263 and 271 of the Civil Practice Act, the surety company was required to reply to the counterclaim within twenty days after service of the answer upon it or to serve a notice of appearance. At the time the present motion was made, the surety company had neither replied nor appeared, and its time to do so had not expired. Issue is not joined until the last pleading which presents the issues to be tried is served (Grant v. Cananea Consolidated Copper Co., 129 App. Div. 77), and, therefore, the motion was prematurely made.
*829The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to renew when issue has been finally joined.
Clabke, P. J., Page, Merrell and Finch, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew when issue has been finally joined.