American Railway Express Company v. Eddy

Full title: AMERICAN RAILWAY EXPRESS COMPANY, Appellant, v. ASA EDDY, Respondent

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 1, 1928

222 App. Div. 840 (N.Y. App. Div. 1928)

Opinion

January, 1928

Appeal from County Court of Albany County.

PER CURIAM.

The order of the City Court of Albany restored the action to the general calendar of said court for trial after an alleged failure to render decision within fourteen days as prescribed by section 230 of the Albany City Court Act (Laws of 1914, chap. 368).^_ The opinion of the court is reported in American Railway Express Co. v. Eddy ( 128 Misc. 502).

_ Since amd. by Laws of 1927, chap. 575, § 230. — [REP.

The justice had lost jurisdiction but the court had not. ( Mosehauer v. Jenkins, 128 App. Div. 825.) The question of laches is not here considered for the reason that the plaintiff has not been heard on that subject by replying affidavits, the defendant having asked no affirmative relief. The defendant can bring up this question by motion to dismiss for failure to prosecute. Cochrane, P.J., Van Kirk, Hinman and Davis, JJ., concur; Whitmyer, J., dissents. Judgment of the County Court reversed on the law, with costs, and the order of the City Court reinstated.