
    Meyer Vessell, Appellant, v. Charles Marx, Respondent.
    (City Court of New York
    General Term,
    October, 1894.)
    The court has no power, in dismissing an action for want of prosecution, to direct judgment for the amount of a counterclaim to which a reply has been interposed,
    Appeal by the plaintiff from an order made at Special Term, dismissing the action and directing judgment on the defendant’s counterclaim.
    
      Davis c& Kaufma/a, for appellant.
    
      L. E. Miller, for respondent.
   Ehrlioh, Oh. J.

While the justice below had the right to dismiss the plaintiff’s action for want of prosecution, he had no power to direct judgment for the amount of the counterplaim pleaded by the defendant.

The plaintiff had replied to the answer, putting the counterclaim in issue, and the defendant by pleading a counterclaim made himself an actor and was bound to bring the action to trial himself, if he desired to have it disposed of. Arnal v. Rahlff, 4 Law Bull. 3.

True, the court in the order appealed from granted the relief stated “ unless plaintiff or his attorneys, within three days after service of this order, consent in writing that the defendant may, within six days thereafter, serve an amended answer without said counterclaim and without prejudice to bring a separate action thereon in any court of this city, and if plaintiff so consents, then that motion be denied without costs.” If the plaintiff had consented -to this condition all might have been well. But the judge could not punish a failure to consent by awarding a judgment on a contested counterclaim, the existence and amount of which were in dispute. Such disposition is unwarranted by any rule of practice.

The plaintiff was entitled to his day in court on the counterclaim, and had the constitutional right to its disposition by a jury, and he has been deprived of this substantial right because he failed to comply with a condition he was under no obligation to assent to. Eor these reasons the order appealed from must be reversed, with costs.

Rewbubgeb and Eitzsimons, J"J., concur.

Order reversed, with costs.  