
    Clare v. Crittenden.
    
      (Supreme Court, General Term, First Department.
    
    October 24, 1890.)
    Practice in Civil Cases—Dismissal—Want of Prosecution.
    An action in which a counter-claim was pleaded, being on the calendar for trial, was reserved, and nothing further was done by either party for nearly three years, when defendant moved to dismiss for want of prosecution. Plaintiff thereupon offered to consent to restore the case to the calendar, and set it down for trial at the next term. Held, that the motion to dismiss was properly denied.
    Appeal from special term, Hew York county.
    Action by .Almira B. Clare against Edward W. Crittenden for damages for breach of contract. The answer denied the damage, and set up a counterclaim, to which a reply was served, and the cause was noticed for trial by both parties for the January term, 1887. The case was first reached on the day calendar for trial on October 7, 1887, and was set down for October 12, and on that day was marked “Reserved generally.” Hothing further was done by either party until July 16, 1890. On that day defendant moved to dismiss the complaint for failure to prosecute, on an affidavit setting forth the above facts, and stating that the cause was reserved for the convenience of plaintiff’s attorney. Plaintiff filed an opposing affidavit, stating that the cause was reserved for the convenience of both- parties, and containing an offer to consent to an order restoring the case to the day calendar, and setting it down for trial for the first day of the next term, and thereon the motion was denied. From the order denying the motion, defendant appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Charles F. MacLean, for appellant. Isaac N. Miller, for respondent.
   Per Curiam.

This appeal is clearly frivolous, and the order appealed from should be affirmed, with $10 costs and disbursements.  