Opinion
November 14, 1951.
Appeal from Supreme Court.
On November 26, 1945, the respondent served upon the defendant city a notice of claim predicated upon the wrongful death of the intestate resulting from an alleged assault committed upon him on the 27th day of September, 1945, by the coappellants who are police officers of the city. On the 26th day of September, 1946, respondent commenced an action against the appellants by the service of a summons without a complaint. On October 5, 1946, the corporation counsel of the city appeared in the action and demanded a copy of the complaint. The respondent failed to serve a complaint and the time to do so expired on October 29, 1946. On January 5, 1950, the appellants moved to dismiss the complaint. This motion was returnable on January 20, 1950, and was adjourned to March 17, 1950. The matter came on to be heard at that time before the late Justice MURRAY who died before a decision was made. On April 4, 1951, the appellants made a second application to dismiss the complaint and that motion came on for a hearing on the 20th day of April, 1951, but was adjourned at the request of the respondent until June 15, 1951. On the latter date the Special Term granted the motion of the appellants to dismiss the complaint unless the respondent served upon the attorney for the appellants within ten days a complaint in which event the motion was denied. The appeal is from that order. The respondent is guilty of gross laches in failing to serve the complaint. Order appealed from modified on the law and the facts by dismissing the action, without costs. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur. [See post, pp. 811, 837, 957.]