Judges： Bergan, Foster, Gibson, Halpern
Filed Date： 12/19/1957
Status： Precedential
Modified Date： 11/1/2024
— Appeal by the defendant from an order of the Special Term, Rensselaer County conditionally dismissing the action. The action was commenced by the service of a summons upon the defendant on September 24, 1953. On October 9, 1953, defendant appeared in the action by the service of a notice of appearance and demanded the service of a copy of the plaintiffs’ complaint. On March 23, 1956, the plaintiffs’ attorney served a copy of the complaint but the defendant’s attorney returned the complaint on the ground that the service was not timely. Thereafter, on August 10, 1956, the defendant moved to dismiss the action for failure to serve a complaint. The plaintiffs were apparently unaware of the neglect of their ease by their attorney; they learned of it for the first time when the motion to dismiss the complaint was made. They then retained a new attorney who tendered a copy of the proposed complaint in opposition to the motion to dismiss. The Special Term granted an order dismissing the action, if the plaintiffs failed to serve a complaint within 10 days. The defendant contends that the motion to dismiss should have been granted unconditionally and it also objects to the form of the order which allowed $10 motion costs to the plaintiffs in the event that they complied with the order. We find no abuse of discretion in the Special Term allowing the plaintiffs to serve a belated complaint under the circumstances of this case. Motion costs, however, should not have been imposed upon the defendant; on the contrary, they should have been assessed against the plaintiffs as a condition of permitting them to serve their complaint. Order appealed from modified by striking out the provision allowing costs to the plaintiffs and substituting therefor a provision that the plaintiffs shall pay $10 costs to the defendant as a condition of being permitted to serve their complaint and extending the time to