Stout v. White — 139 N.Y.S. 77

Majority

p. 77

STOUT v. WHITE.

(Supreme Court, Appellate Division, First Department.

January 3, 1913.)

Headnote

1. Pleading (§ 40^[1] )—Complaint—Time for Filing—Leave to Serve.

Where action was commenced July 12th, by summons without a complaint, and by consent time to serve a complaint was extended until September 20th, and on October 23d defendant filed a motion to dismiss for want of a complaint, plaintiff’s motion for leave to serve a complaint thereafter, unaccompanied by a copy of his proposed complaint, an affidavit of merits, or any excuse for default, should have been denied.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 91-95; Dec. Dig. § 40.*]

2. Dismissal and Nonsuit (§ 58*)—Grounds—Want of Prosecution.

Where action was commenced July 12th by summons without a complaint, defendant, who appeared and consented that a complaint might be served before September 20th, was entitled to a dismissal for failure to file such complaint, where plaintiff’s motion for leave to serve a complaint was presented without copy of the proposed complaint, affidavit of merits, or excuse for dais default.

[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 134-139; Dee. Dig. § 58.*]

Appeal from Special Term, New York County.

Action by James N. Stout against Archibald S. White. Prom an order denying a motion to dismiss the action for want of prosecution, and from an order granting a motion to open the default and for leave to serve a complaint, defendant appeals. Orders reversed, motion to open default denied, and motion to dismiss granted.

Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and DOWLING; JJ.

Charles E. Thorn, of New York City, for appellant.

Wm. H. Osborne, of New York City, for respondent.

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.

' [1,2] The action was commenced on July 12, 1912, by the service of a summons without a complaint. Defendant duly appeared on July 31st. By consent plaintiff’s time to serve a complaint was extended until September 20th. 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.

p. 78

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 $10' costs, and the order denying defendant’s motion to dismiss is reversed, and the motion granted, with $10 costs, with $10 costs and disbursements to defendant in this court.