Uhlfelder v. Dunn , 37 Misc. 843 ( 1902 )

O’Dwyer, J.

In an action in replevin, the defendant is as much an actor, seeking affirmative relief, as the plaintiff, and this cause having been placed on the calendar by defendant and noticed for trial, the defendant could not subsequently move at Special Term for a dismissal of the action for want of prosecution. The cause having been dropped from the general calendar for failure to refile a note of issue the proper practice requires that the party desiring relief have the cause restored to the calendar, and when the same is reached for trial, the party appearing may have it disposed of according to law. The defendant Dunn was in default, and upon the notice of motion served herein by the defendant Bender, that defendant was not entitled to an order dismissing the action as to all the defendants, or the affirmative relief granted in the order appealed from.

Order appealed from reversed and motion denied, with ten dollars costs and disbursements to the appellants, and with leave to the defendant Bender to apply at Special Term for leave to have the case restored to the general calendar.

Oohlah, J., concurs.

Order reversed and motion denied, with ten dollars costs, with leave to defendant Bender to apply at Special Term for leave to have case restored to general calendar.