#### Charles H. Jacot et al., Plaintiffs, *v.*William G. Marks, Defendant.

(Supreme Court, New York Special Term,

March, 1899.)

Dismissal of complaint for want of prosecution — Taches of a defendant who has set up a counterclaim.

Where the defendant has interposed a counterclaim and has demanded thereon affirmative relief in an action triable by a jury, his motion, made under section 822 of the Code of Civil Procedure and Rule 36 of the General Rules of Practice, to dismiss the complaint for the plaintiffs’ conceded unreasonable delay in prosecution, will be denied where the defendant himself has never tried to bring the case to trial, as he also is an actor in the case and should make at least a reasonable effort to try it

*Semble,*that upon such a motion the defendant could obtain no relief under his counterclaim.

Motion to dismiss complaint, for neglect to prosecute action.

Edward Browne, for motion.

George H. Engelhard, opposed.

Gildersleeve, J.

This is a motion to dismiss the complaint, with costs, for unreasonable (julay on the part of the plaintiffs in prosecuting the action. The motion is made under section 822 of the Code, and, also, since the action is triable by. a jury, under rule 86 of the General Buies of Practice, which refers only to cases triable by a jury. See Galkin v. Beattie, 4 Law Bull. 42. .The above section of the Code provides that where the plaintiff unreasonably neglects to proceed in the action, the court may, in its discretion, dismiss the complaint, upon the application of the defendant, and render judgment accordingly. Buie 36 pro*671vides that the motion may be made at any time after younger issues shall have been tried in their regular order. Objection is made that the affidavits in support of the motion do not state that younger issues have been tried in their regular order. Such a statement should as a general rule, in cases triable by a jury, appear in the moving papers; but, in the case at bar, the affidavits allege that plaintiffs have wholly failed and neglected to proceed with the prosecution of the action, and have taken absolutely no steps to bring the issues herein to trial, for nearly eighteen months. From this statement the court may reasonably infer that younger issues have been tried in their regular order. There appears to be no doubt of the plaintiffs’ unreasonable neglect to prosecute the action. The answer, however, sets up a counterclaim, and demands affirmative relief; but it does not appeal’ that defendant has taken any steps to bring the case to trial. He is, apparently, as guilty of laches as are the plaintiffs. In the case of Amal v. Rahlff (4 Law Bull. 3), Mr. Justice Barrett, sitting at Special Term, held that, in a case where a counterclaim has been interposed, the defendant is also an actor in the case, and should bring the case to trial himself, or make some reasonable effort to do so. Also, in the case of Clare v. Crittenden (11 N. Y. Supp. 519), the General Term of this department dismissed, as frivolous, an appeal from an order denying a motion of this kind in a case where a counterclaim was pleaded, and both parties had neglected to bring the case to trial for nearly three years. In the case at bar, the plaintiffs’ offer to restore the case to the calendar, and proceed to trial with all diligence, or, at defendant’s option, to discontinue, without costs. So far as the defendant’s counterclaim is concerned, he cannot obtain judgment upon it on a motion of this kind. In the case of Roy v. Thompson, 8 How. Er. 253, it was held that “only a judgment of dismissal that can be founded upon such a motion,” and that “ When a defendant claims affirmative relief legal or equitable, the duty of an actor in bringing the cause to trial devolves upon him,” and that “ He can only obtain the relief when the cause is brought to a trial upon his own notice or that of the plaintiff.” I am of opinion that the motion must be denied, but, under the circumstances, without costs.

Motion denied, without costs.