
    Moffett, Hodgkins and Clarke Company, Resp’t, v. Peoria Water Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 14, 1894.)
    
    1. Appeal—Discretion.
    Upon a motion to dismiss based on loches, which the party attempts to-explain, it is within the discretion of the court to determine whether the explanation was sufficient.
    2. Trial—Motion to dismiss.
    The jurisdiction of the court, on the ground that both parties were foreign corporations, will not be considered on a motion to dismiss for lachea of plaintiff.
    Appeal from an order dismissing the action in default of compliance of conditions.
    
      John M. Shedd, for app’lt; Joseph A. Arnold, for resp’t.
   O’Brien, J.

The motion was made by "defendant to dismiss the action and the summons herein, which was granted, “ unless plaintiff serve upon the attorney for defendant a copy of his -complaint substituting the receivers of the plaintiff as parties,” and upon payment of costs, and granting leave to the receivers to be substituted in the place and stead of the above-named plaintiff. The appellant insists that the motion should have been granted -absolutely and unconditionally because of the loches of the receivers of the plaintiff in the prosecution of the action. It appears that the summons was served on April 6, 1893, and that thereafter the defendant duly served its notice of appearance. By failing properly to serve an order extending the" time to serve a complaint, the plaintiff was in default, and, notwithstanding such default, served a complaint, which was promptly returned. Between the service of the summons and the time of the default, receivers cf the plaintiff were appointed in this "state, and a receiver of the «defendant corporation appointed in the state of Illinois. On the motion the plaintiff presented an affidavit explaining the loches, .and asking that if in default such default should be opened, and that the complaint already served, but returned by the defendant, be permitted to stand, or that it should be allowed to serve a new •complaint. The motion to dismiss having been predicated upon the loches of the plaintiff, which it endeavored to explain, it was a matter within the discretion of the court to determine whether such explanation was sufficient, and we do not think that the con■clusion reached should be disturbed. This would dispose of the appeal were it not for the appellant, whose principal grievance is that, inasmuch as by the affidavit used on this motion it is alleged that at the time of the commencement of the action both plaintiff .and defendant were foreign corporations, and that the action itself was not one which, under section 1780 of the Code, is allowable, this consideration, going to the jurisdiction of the court to entertain the action, should have been controlling upon the judge at special term in having him dismiss the action absolutely and without conditions. As the "case stood, no complaint was duly served, and all that was properly done in the action was the service of a summons; and upon a motion of this kind, until the court is in a position to know just what the action is about, and what objections there may be thereto, it is under no obligation, in the absence of the pleadings, to determine questions which properly arise thereon. By permitting the substitution of the proper parties plaintiff and the service of a complaint by the receivers, the defendant has lost no rights or defenses. What the court did was to dispose of the question of whether or not the action should be dismissed for loches in bringing in the proper parties plaintiff, and directing them to serve their complaint, reserving to the defendant all its rights and defenses, which in a proper way can be presented, when, with the complaint or pleadings before the court, it can dispose in an orderly manner of any questions then raised. The order should be affirmed, with $10 costs and disbursements. All concur.  