Dane v. MacFadden Publications, Inc.

Order reversed upon the law, without costs, and motion denied, without costs. Upon the trial of this action defendants’ proposed amendment of their answer was granted and the answer amended accordingly. Plaintiff then claimed surprise and the court permitted the withdrawal of a juror. Thereafter plaintiff moved at Special Term for an order striking out the matters contained in the answer as amended at Trial Term and to compel defendants to serve a new amended answer. The Special Term had no jurisdiction to grant this relief. Plaintiff’s remedy, if any, was to enter an order at Trial Term and to appeal therefrom to this court. (See Feizi v. Second Russian Insurance Co., 199 App. Div. 775; Copeland v. Hugo, 212 id. 229.) Moreover, plaintiff’s motion to strike out defenses, made prior to the *816trial, was denied at Special Term, and from the order entered thereon plaintiff did not appeal. That decision is res adjudieata as to the matters therein determined. Lazansky, P. J., Young, Hagarty, Seeger and Carswell, JJ., concur.