Clare v. Crittenden 34 N.Y. St. Rptr. 120

Almira R. Clare, Resp’t, v. Edward W. Crittenden, App’lt.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Dismissal of complaint—Want of feosecijtion.

In an action for breach of contract the answer consisted of a denial and counterclaim. When reached on the calendar it was set down for trial, but upon the day set was reserved generally and nothing further was done for almost three years,when motion was made to dismiss for want of prosecution. In opposition thereto plaintiff offered to restore the case to the day calendar and set it down for the first day of the term. Held, that the motion was properly denied.

Appeal from order denying a motion to dismiss the complaint for want of prosecution.

The action was for damages for the breach of a contract con*121tained in a lease providing that in case of a sale of the premises plaintiff was to be justly indemnified. The answer denied the damage and set up a counterclaim for injuries to the furniture. A reply denying the allegations of the counterclaim was served on the 23d of November, 1886, and the cause was at once noticed for trial by both parties for the January term, 1887. On October 7th, the case was first reached on the day calendar and was set down for the 12th, and on that day was marked reserved generally by consent. Nothing further was done by either party until July 16, 1890, when defendant moved, upon an affidavit setting forth these facts and. the additional statement that the cause was reserved upon the request of plaintiff’s attorney on condition that said attorney would notify deponent on the return of his client and agree on an early day for trial, for an order dismissing the complaint, with costs. This was opposed by an 'affidavit alleging that the cause was reserved by consent for the convenience of both parties and containing an offer to consent to an order restoring the case to the day calendar and setting it down for trial for the first Monday of October. Justice Andrews upon hearing both parties denied the motion without costs, from which order defendant appealed to this court.

Charles F. MacLean, for app’lt; Isaac N. Miller, for resp’t.