Opinion
January, 1913.
Present — Ingraham, P.J., McLaughlin, Clarke, Scott and Dowling, JJ.
The defendant appeals from two orders, one denying his motion to dismiss for want of prosecution and the other opening plaintiff's default in failing to serve a complaint. The action was commenced on July 12, 1912, by the service of a summons without a complaint. Defendant duly appeared on July thirty-first. By consent plaintiff's time to serve a complaint was extended until September twentieth. It was not served, and on October 23, 1912, defendant moved to dismiss for lack of prosecution. Plaintiff thereupon moved on an order to show cause to open his default and for leave to serve the complaint. Both motions came on to be heard at the same time with the result that plaintiff's motion was granted and defendant's motion denied. The plaintiff served no copy of a proposed complaint, no affidavit showing merits, and gave no excuse for his default. His motion should have been denied and that of defendant granted. The order opening plaintiff's default and permitting him to serve a complaint is, therefore, reversed and the motion denied, with ten dollars costs, and the order denying defendant's motion to dismiss is reversed and the motion granted, with ten dollars costs, with ten dollars costs and disbursements to defendant in this court.
Orders reversed, with ten dollars costs and disbursements; motion to open default denied, with ten dollars costs, and motion to dismiss action granted, with ten dollars costs.