Unger v. Forty Second Street — 29 N.Y. Super. Ct. 545

Majority

p. 545

Rachel Unger, plaintiff, vs. The Forty Second Street &c. Railroad Company, defendants.

Headnote

A motion to dismiss the complaint, under the 27th rule of court, can only be made after an issue of fact has been joined in the action. The 4th subdivision of section 274 of the Code, relates only to actions against several defendants, where the plaintiff fails to proceed against the defendant or defendants served.

(Before Monell, J., at Special Term,

January, 1867.)

Motion to dismiss the complaint, for want of prosecution.

This was a motion to dismiss the complaint for want of prosecution. After the service of the summons and complaint, the defendants obtained an order staying the plaintiff’s proceedings until the payment of the costs of a former suit between the parties, and extending the time to answer for twenty days after such costs should have been paid. The costs have not been paid, nor the stay of proceedings vacated, and the defendants have not answered the complaint.

A motion to dismiss, under the 27th rule of court, can only be made after an issue of fact has been joined in the

p. 546

action; and the 4th subdivision of section 274 of the Code, relates to actions against several defendants,-where the plaintiff fails to proceed against the defendant or defendants served.

There being no provision in the Code or in the rules of court applicable to this motion, it must be denied.