Opinion
January Term, 1900.
Edward Browne, for the appellant.
G.H. Engelhard, for the respondents.
The plaintiffs' delay in serving their amended complaint and getting their case into a situation where it could be tried was entirely inexcusable, and if there ever was a case in which the complaint should be dismissed for such a delay this was one. No only did it appear without contradiction that they delayed to serve the amended complaint for over a year, so that it was not in the power of the defendant to proceed in the action, but they used the pendency of this action to defeat the defendant's effort to obtain an affirmative judgment on his counterclaim in another court. The fact that the defendant had interposed a counterclaim affords no reason for denying this motion. ( Roy v. Thompson, 1 Duer, 636.)
It is quite true that, upon the motion, the defendant could only obtain a dismissal of the complaint, and could not recover any affirmative relief, but he was not barred from having that relief because he sought affirmative relief in the action.
It is also true that the disposition of such a motion is in the discretion of the court, but that discretion is reviewable upon appeal to this court, and when it is evident that it has been abused the complainant is entitled to his remedy.
The order denying the motion is, therefore, reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint is granted, with ten dollars costs.
VAN BRUNT, P.J., O'BRIEN and INGRAHAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.