Erastus H. Munson and Others, Appellants, v. Cornelia A. Munson and Others, Respondents

Erastus H. Munson and Others, Appellants, v. Cornelia A. Munson and Others, Respondents. When a complaint is improperly dismissed for laches in prosecuting the action. Where the defense of. laches is not interposed to a motion, made in the fall of 1899, for leave to file a supplemental complaint in an action begun in 1895, it will be presumed that the plaintiff has not been guilty of laches up to that time, and it is, therefore, error to grant on December 29, 1899, an order dismissing the complaint and directing the cancellation of the lis pendens for an alleged unreasonable neglect to prosecute the action. Appeal by the plaintiffs, Erastus H. Munson and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of January, 1900, dismissing, the complaint and directing the cancellation of the Us pendens theretofore filed in the action. ■ ' S. G. Derrickson, for the appellants. Henry Smith, for the respondents. [MAJORITY — Rumsey, J.:] Rumsey, J.: This motion was made on the 29th. of December, 1899, for an order canceling and discharging the Us pendens and discontinuing the action. The affidavits show no reason why either relief should be granted. On the hearing it was made to appear that although the suit was begun in 1895, and was put upon the calendar and reserved generally twice, yet in the fall of 1899 the court gave leave to serve and file a supplemental complaint, which was served upon all the defendants. It does not appear what the condition of the action has been since that took place or whether or not issue has been joined so that it could go to trial. As laches, in failing to bring the suit to trial down to the time of the filing and service of the supplemental complaint, would have been á perfect defense to the motion for leave to file and serve the supplemental complaint (McDonald v. Davis, 12 Hun, 95), and as no such defense was interposed to that motion, it is fair to presume that up to that time there had been no laches on the part of the plaintiff. Certainly there has been none since. For that reason no ground is shown why either the complaint should have been dismissed for unreasonable neglect to proceed in the action or why the Ms pendens should have been canceled for the same reason. ■ The defendants ill their moving papers set up no facts whatever •from which, it can be inferred that there was any such, negligenqe to proceed or that any ground existed for the relief granted by the order, and the only facts which might be -construed to entitle the defendants to such relief were such as might, be inferred from certain portions of the plaintiffs’ affidavits, but these are sufficiently explained by other portions of the same paper. . Upon the whole record there does not séem to have been sufficient grounds for the .granting of the relief given the defendants here, and the order must be'- reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice to the rights ’of the defendants to make such other motion in the premises as they may be advised.- ' Van. Brunt, P.. J., Patterson, Ingraham and Hatch, JX, concurred. Order reversed, with ten dollars costs and disburséments, and motion denied, with ten dollars costs, without-prejudice to the right of defendants to make, such other motion in the premises as- they may be advised., . .