Uhlfelder v. Dunn — 76 N.Y.S. 979

Majority

p. 979

UHLFELDER et al. v. DUNN, Sheriff, et al.

(City Court of New York,

General Term.

January, 1902.)

Headnote

Action—Want of Prosecution—Dismissal.

Where an action in replevin was placed on the calendar by the answering defendant, the other defendant being in default, and after-wards dropped from the calendar for failure to refile a note of issue, such answering defendant cannot subsequently move at special term for a dismissal of the action as to both defendants for want of prosecution.

Appeal from special term.

Action by Simon Uhlfelder and another against Thomas J. Dunn, sheriff of the county of New York, and another. From a judgment

p. 980

dismissing the action for want of prosecution, and granting affirmative relief, plaintiffs appeal.

Reversed.

Argued before CONLAN, and O’DWYER, JJ.

Arthur Furber, for appellants.

In an action in replevin the defendant is as much an actor, seeking affirmative relief, as the plaintiff; and, this cause having been placed on the calendar by defendant and noticed for trial, the defendant could not subsequently move at special term for a dismissal ¿f the action for want of prosecution. The cause having been dropped from the general calendar for failure to refile a note of issue, the proper practice requires that the party desiring relief have the cause restored to the calendar, and when the same is reached for trial the party appearing may have it disposed of according to law. The defendant Dunn was in default, and, upon the notice of motion served herein by the defendant Bender, that defendant was not entitled to an order dismissing the action as to all the defendants, or the affirmative relief granted in the order appealed from. Order appealed from reversed, and motion denied, with $io costs and disbursements to the appellants, and with leave to the defendant Bender to apply at special term for leave to have the case restored to the general calendar.

Order reversed and motion denied, with $io costs, with leave to defendant Bender to apply at special term for leave to have case restored to general calendar.

CONLAN, J., concurs.