American Railway Express Co. v. Eddy — 222 A.D. 840

Majority

p. 840

American Railway Express Company, Appellant, v. Asa Eddy, Respondent.

Headnote

Courts— City Court of Albany — jurisdiction of court and of justices— Albany City Court Act (Laws of 1914, chap. 368), § 230, * construed — laches of plaintiff — question may be raised by motion to dismiss for failure to prosecute.

Since amd. by Laws of 1927, chap. 575, § 230.— [Rep.

Appeal from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on September 15, 1927, and also from an order entered on the same day reversing an order of the City Court of Albany.

The order of the City Court of Albany restored the action to the general calendar of said court for trial after an alleged failure to render decision within fourteen days as prescribed by section 230 of the Albany City Court Act (Laws of 1914, chap. 368). * The opinion of the court is reported in American Railway Express Co. v. Eddy (128 Mise. 502).

The justice had lost jurisdiction but the court had not. (Mosehauer v. Jenkins, 128 App. Div. 825 .) The question of laches is not here considered for the reason that the plaintiff has not been heard on that subject by replying affidavits, the defendant having asked no affirmative relief. The defendant can bring up this question by motion to dismiss for failure to prosecute. Cochrane, P. J., Van Kirk, Hinman and Davis, JJ., concur; Whitmyer, J., dissents. Judgment of the County Court reversed on the law, with costs, and the order of the City Court reinstated.