Charles H. Jacot and Aristides Jacot, Respondents, v. William L. Marks, Appellant

Charles H. Jacot and Aristides Jacot, Respondents, v. William L. Marks, Appellant. Dismissal of a complaint for want of prosecution — delay in serving a complaint with a view to defeating the prosecution of a counterclai/m—discretionary power reviewable by the Appellate Division. Where the plaintiffs in an action neglect to serve an amended complaint for over a year after the entry of an order permitting them to do so, and use the pendency of the action to defeat an independent action against them on a counterclaim set up in the defendant’s answer, it is error for the court to deny the defendant’s motion to dismiss the complaint for want of prosecution. The interposition of the counterclaim affords no reason for denying the motion. The discretion exercised by the Special Term on such a motion is reviewable by the Appellate Division. Appeal by the .defendant, William. L,. Marks, from an order of the Supreme Court, made at the bfew York Special Term and entered in the office of the clerk of the county of ÜSTéw York on the 22d day of March, 1899, denying his motion to dismiss the plaintiff’s complaint. Edward Browne, for the appellant. G. H. Engelhard, for the respondents, [MAJORITY — Rumsey, J.:] Rumsey, J.: The plaintiffs’ delay in serving their amended complaint and getting their case into a situation where it could be tried was entirely inexcusable, aiid 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 servé 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 iio reason for denying this motion. (Boy 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 lie sought affirmative relief in the action.. It is also true that the disposition of such a motion is in the dis- ■ ■cretion of the court, but that discretion is reviewable upon appeal to this, court, aiid 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, B- J-, O’Brien and Ingraham, JJ., concurred. Order reversed,. with ten dollars costs and disbursements, and motion granted, with ten dollars costs.