Chin v. ChinChin v. Chin
Resettled order entered in the Supreme Court, New York County, entered on April 24, 1973, resettling an order entered on April 10, 1973, dismissing the action for failure to prosecute, and vacating a prior order granting temporary alimony and vacating- another prior order of defendant’s ■ arrest and canceling a bond posted by defendant to obtain his release and directing that defendant’s counterclaim be set down for inquest, unanimously modified, on the law and the facts and in the exercise of discretion, without costs and without disbursements, so as to direct a trial as to the counterclaim and reply, and otherwise the order is affirmed. We feel that the court below properly dismissed the complaint and properly granted defendant related relief for plaintiff’s failure to diligently prosecute her action. The defendant, in his answer, asserted a counterclaim seeking to impress a trust on plaintiff’s real and personal property. Plaintiff timely served a reply to the counterclaim consisting of a general denial and affirmative defenses. Thus the counterclaim and reply became pleadings, in effect, independent and separate of the matrimonial action. The burden to diligently prosecute the counterclaim is upon the defendant. Plaintiff should be entitled to defend against the counterclaim. Her failure to diligently prosecute her claims should not bar her from defending her husband’s claims against her. Concur — Nunez, J. P., Kupferman, Murphy, Tilzer and Lynch, JJ.