| N.Y. App. Div. | Dec 15, 1927
Order granting plaintiff’s motion to serve second amended complaint and denying defendants) motion to dismiss complaint for lack of prosecution reversed upon the law and the facts, with ten dollars costs and disbursements, motion for leave to serve second amended complaint denied, with ten dollars costs, and defendants’ motion to dismiss complaint granted, with ten dollars costs, because of the unreasonable delay in prosecuting the action after the beginning of the reference. The fact that defendants had interposed a counterclaim did not affect their right to move for a dismissal because of plaintiff’s unreasonable delay. (See Fleischman v. Mengis, 113 N.Y.S. 515" date_filed="1908-12-15" court="N.Y. App. Term." case_name="Fleischman v. Mengis">113 N. Y. Supp. 515.) Jacot v. Marks (26 Misc. 670" date_filed="1899-03-15" court="N.Y. Sup. Ct." case_name="Jacot v. Marks">26 Misc. 670), cited by respondent as authority to the contrary, was reversed. (Jacot v. Marks, 46 A.D. 531" date_filed="1900-01-15" court="N.Y. App. Div." case_name="Jacot v. Marks">46 App. Div. 531.) Upon consent of defendants, their counterclaim is dismissed, without costs. Lazansky, P. J., Rich, Kapper, Seeger and Carswell, JJ., concur.