O'DWYER, J.
On October 25, 1898, the defendant served his answer; October 26, 1898, the plaintiff served notice of trial for November 4, 1898; October 31, 1898, the defendant served an amended answer. No further notice of trial was served, and in opposing a motion to advance the cause to the short cause calendar, the defendant in his affidavit distinctly made the point that the case was improperly on the calendar, inasmuch as no notice of the trial was served after the service of the amended answer. The defendant herein did not waive his right to the relief asked for, and having made the motion before the case was regularly reached, he was in ample time. He had a right to wait until the case was reached on the day calendar, and then move to strike it therefrom, if irregularly thereon.
Order appealed from should be reversed and motion granted, with ten dollars costs and disbursements.
FITZSIMONS, Ch. J., concurs.
Order reversed and motion granted, with ten dollars costs.