EFFECT OF AMendment of PLEADINGS ON PROGRESS OF CASE,―continued. and the defendant take an order dismissing the complaint when the cause is called upon the calendar. Rogers v. Rathbun, 8 How. Pr. 466. Failure of the plaintiff to serve a new notice of trial after the service of an amended answer, although the defendant thereafter served a notice of trial, justifies the court in striking the case from the calendar. Yates v. McAdam, 18 Misc. 295; 76 St. Rep. 109; 42 Supp. 109. d. During trial. A mere allegation of being taken by surprise is not sufficient to have a cause put off on account of an amendment granted by the court on the trial. Fitzsimmons v. McEnerney, 9 Week. Dig. 499. In Conway v. New York, 8 Daly, 306, the court said, "If the defendant had claimed to have been surprised by the amendment, or that he was unprepared to proceed with the trial and desired to answer the complaint as amended, it would have been the duty of the court to have postponed the further trial of the cause." Where the court allows plaintiff to serve an amended complaint because he cannot recover on the complaint as it stands, it may grant a postponement of the trial and permit the case to go over the term. Austin v. Wauful, 36 St. Rep. 779; 13 Supp. 184. If plaintiff makes an affidavit stating that he is taken by surprise by an amendment of the answer to meet the proofs in the case, granted by the judge on the trial, and that he cannot then safely proceed to trial, he may have time to reply to the amended answer, and the progress of the trial will be stayed for that purpose. Therasson v. Bryan, 22 How. Pr. 98. e. When made for purpose of delay. But if it is made to appear to the court that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just. Code Civ. Pro. § 542. An amended answer cannot be stricken out on the ground that it was served for the purpose of delay, where one of the defendant's attorneys, who was best acquainted with the facts in the case, and who was absent from the state at the time of the service of the complaint, on his return deemed it necessary to amend the answers, and swore that the amended answer was necessary to enable defendants to avail themselves of their defense in the action, and was served in good faith and not for the purpose of delay. Griffin v. Cohen, 8 How. Pr. 451. EFFECT OF AMENDMENT OF PLEADINGS ON PROGRESS OF CASE,-continued. An amended answer, setting up the defense of usury interposed by a purchaser of the mortgaged premises with notice of the mortgage, served after the cause has been noticed for trial, is unnecessary and put in for the purpose of delay, and the cause need not be renoticed for trial, but the court may require the trial to proceed on the notice of trial originally given. Minrath v. Teachers' Land & Improvement Co., 50 St. Rep. 39; 21 Supp. 204. An amended complaint cannot be stricken out on the ground that it as served merely for the purpose of delay, when all the additional allegations are pertinent and essential to certain features of the case, and the defendant has taken nearly five months to serve his answer. Pritchard v. Nederland Life Insurance Co. (No. 2.), 38 App. Div. 111; 90 St. Rep. 604; 56 Supp. 604. An amended answer, in which the amendments consist in merely correcting clerical errors, and are clearly frivolous or immaterial, served immediately before the circuit, and obviously for the mere purpose of delay, and to throw the cause over the term, may be disregarded and judgment taken. Vanderbilt v. Bleeker, 4 Abb. Pr. 289. Where plaintiffs' notice of trial was returned by defendants because not properly subscribed with the attorney's post-office address, and it was not alleged to have been improperly returned, an amended answer cannot be stricken out on the ground that plaintiffs would thereby lose the benefit of a term. Conquest v. Barnes, 4 Supp. 696; 21 St. Rep. 112; 16 Civ. Pro. 268. f. Stipulation of parties. A stipulation and order, providing that the amendment of the complaint be without prejudice to any of the proceedings already had or to the position of the cause on the day calendar, renders unnecessary the service of a new notice of trial. Klenert v. Iba, 17 Misc. 69, 39 Supp. 836. The amendment of the summons and complaint by adding a new party defendant by written stipulation of the parties, and without the order of the court, followed by the subsequent voluntary appearance of the party added, does not affect the validity of the judgment taken by default against all the defendants after the withdrawal of their answer to such amended summons and complaint. Christal v. Kelly, 88 N. Y. 285, affi'g 24 Hun, 155. An amended answer should not be stricken out upon the ground that it was served for the purpose of delay and that the plaintiff would thereby lose the benefit of the term for which the cause was noticed for trial, where, although the effect of the amendment would be to put the cause over the term, the defendant agrees to stipulate to try the case at that term. EFFECT OF AMENDMENT OF PLEADINGS ON PROGRESS OF CASE,--continued. Harney v. Provident Savings Life Assurance Society of N. Y. 20 Civ. Pro. 315; 41 App. Div. 410; 92 St. Rep. 822; 58 Supp. 822. In the first judicial department a notice of trial must be given for that term for which the note of issue is filed, and attorneys cannot by stipulation provide that a note of issue filed before the service of an amended answer shall be effective to place the case on the calendar without filing a new note of issue. Leonard v. Faber, 31 App. Div. 137; 28 Civ. Pro. 18; 86 St. Rep. 772; 52 Supp. 772. Where the pleadings are amended in an action in the first department, a new note of issue and a new notice of trial are necessary, and no stipulation of the parties that such amendment shall not prejudice the position of the case on the calendar of the trial term, will be given effect by the court, although assented to by the trial justice, who allowed the amendment, and embodied by him in an order directing the calendar clerk to restore the cause to the head of the general calendar, or as near thereto as it could be placed, the date of issue to remain the same. Keilty v. Traynor, 25 Misc. 351; 89 St. Rep. 744; 55 Supp. 744; 28 Civ. Pro. 342. g. In justice's court. Where a party amends his pleading after joinder of issue, or pleads over upon the decision of a demurrer, and it is made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party, in consequence of the amendment or pleading over, an adjournment must be granted. Code Civ. Pro. § 2944. In Thedford v. Reade, 28 Misc. 563; 93 St. Rep. 537; 59 Supp. 537, the court said, "In the municipal court the justice must entertain the motion to amend, granting the defendant an adjournment if the allowance of the amendment renders it necessary, and can deny the relief only where the furtherance of substantial justice forbids." UNITED STATES LIFE INS. CO. IN THE CITY OF NEW YORK v. ETTINGER et al. [32 Misc. 378; 100 St. Rep. 1; 66 Supp. 1.] (Supreme Court, Special Term, New York County. August, 1900.) MORTGAGES-RECEIVER-PROVISION FOR APPOINTMENT. A covenant in a mortgage extending the lien thereof to the rents and profits, and providing for the appointment of a receiver in case of foreclosure, will not entitle the mortgagee to the appointment of a receiver, where it appears that the taxes upon the property have been fully paid, that the interest was met when last due, that the persons liable for the debt are solvent, and that the premises are adequate security for the mortgage debt. NOTE. RIGHT TO RECEIVER IN MORTGAGE FORECLOSURE. a. The statute. b. Under receiver's clause. c. When security inadequate or mortgagor insolvent. a. The statute. § 713 of the Code of Civil Procedure provides as follows: "In addition to the cases, where the appointment of a receiver is specially provided for by law, a receiver of property, which is the subject of an action, in the supreme court or a county court, may be appointed by the court, in either of the following cases: 1. Before final judgment, on the application of a party who establishes an apparent right to, or interest in, the property, where it is in the possession of an adverse party, and there is danger that it will be removed beyond the jurisdiction of the court or lost, materially injured, or destroyed. 2. By or after the final judgment to carry the judgment into effect, or to dispose of the property, according to its directions. 3. After final judgment, to preserve the property, during the pendency of 1900] • United States Life Ins. Co. v. Ettinger. Action by the United States Life Insurance Company in the City of New York against Moritz Ettinger, and Moritz Ettinger and Maurice H. Baumgarten as executors, and others, for the foreclosure of a mortgage. Motion by plaintiff for the appointment of a receiver. Denied. Donald B. Toucey, for plaintiff. Maurice Rapp, for defendant Nathan. GIEGERICH, J. It appears affirmatively from the opposing affidavits, without denial by the applicant, that the taxes upon the mortgaged premises have been fully paid, that the interest upon the bond and mortgage in suit was met when last due, that the persons liable for the debt are solvent, and that the premises in question are adequate security. The plaintiff relies solely RIGHT TO RECEIVER IN MORTGAGE FORECLOSURE, -continued. an appeal. The word "property" as used in this section, includes the rents, profits, or other income, and the increase of real or personal property." b. Under receiver's clause. The existence in a mortgage of a receiver's clause gives the mortgagee no absolute right to the appointment of a receiver, but such clause is to be con sidered in connection with the other features of the case in determining the propriety of appointing a receiver. Eidlitz v. Lancaster, 40 App. Div. 446; 93 St. Rep. 54; 59 Supp. 54. A clause mortgaging the rents and profits does not oblige the court to appoint a receiver unless the land is shown to be inadequate security. Brick v. Hornbeck, 19 Misc. 218; 77 St. Rep. 301; 43 Supp. 301. A receiver will not be appointed, although the mortgage contains a clause providing for such appointment, where no allegations are made as to the sufficiency or insufficiency of the security. Jarvis v. McQuaide, 24 Misc. 17; 87 St. Rep. 97; 53 Supp. 97. Where the property is ample security for the payment of the mortgage, a receiver will not be appointed and possession taken from the mortgagor before a decree and sale, although the mortgage provides for a receiver on default of the mortgagor. Degener v. Stiles, 25 St. Rep. 422; 6 Supp. 474; 2 Silv. S. Ct. 30. |