I dissent and vote for affirmance of the order. A motion of this kind is addressed to the discretion of the court at Special Term, and its determination should not be disturbed on appeal unless it is clear that the discretion of the court has been abused. Even though upon the motion papers the case was a proper one for the court to dismiss had it seen fit so to do, yet, in my opinion, there were sufficient grounds to warrant the court, in the exercise of its discretion, to deny the motion upon proper conditions, giving the plaintiff the right to bring the action on for hearing before the referee within a reasonable time. (Graham v. Ackley, 21 App. Div. 416.) In this case the defendant interposed a counterclaim exceeding the demand made in plaintiff’s complaint, and where the defendant in such a case takes no steps to bring the case on for hearing, that fact is entitled to some weight in relieving plaintiff’s default when a motion to dismiss for lack of prosecution is made. In such a case the absolute dismissal of the complaint is too harsh a punishment. (Heymer v. Arthur, 27 N. Y. St. Repr. 106.) In Ellsworth v. Brown (16 Hun, 1) it appeared that an order of reference had been granted, and after several hearings had been had, the referee refused to appoint another hearing unless his fees were paid. The case remained in this situation for over two years, and upon motion to dismiss for failure of plaintiff to prosecute the action, an order was made dismissing the action unless the plaintiff proceeded to another hearing within ninety days. Upon appeal to the General Term, Third Department, the court, while expressing the opinion that this was a very liberal condition," affirmed the order.
*807In the present case no reason is made to appear why the defendant did not press the action before the referee for four and one-half years after the order of reference was made, although by its answer it has interposed a counterclaim against the plaintiff of over $123,000, and while it may be true that such fact is not necessarily controlling upon the court in determining the motion, still I think it is entitled to be given some weight, as it apparently was, in the consideration of the motion.
Upon the undisputed facts the reversal of the order appealed from results in very great injustice to the plaintiff. It was stated in the affidavit presented to the Special Term on behalf of the plaintiff, and was not denied, that the plaintiff has a good and valid cause of action against the defendant for the sum of $109,576.43. By stipulation of the parties the matter was referred to ex-Judge Mebwin, who resides in Utica, N. Y., to hear, try and determine the same, and an order of reference was entered on the 25th day of August, 1908, and notice of entry served upon defendant’s attorney. Prom that time no steps were taken by either party to bring the case to trial before such referee. The attorneys for the respective parties reside in the same city, but during the entire time defendant’s attorney, neither orally or otherwise, even suggested to plaintiff’s attorney that he desired to have the trial proceed before the referee, and no complaint in that regard was made until the motion to dismiss the action was made.
I am assuming that no sufficient excuse was made by the plaintiff for his failure to bring the case to trial before the referee, but such failure was acquiesced in by the defendant, at least by its silence, and under those circumstances plaintiff’s claim, amounting to over $109,000, a perfectly valid claim, so far as we may know, ought not to be wiped out. I think the court at Special Term properly exercised its discretion in refusing to dismiss the action except upon condition that the case be noticed for hearing before the referee not later than April 1, 1913. It is not suggested that the terms imposed by the order appealed from were not sufficiently severe, but it is urged that there should have been an absolute dismissal of the plaintiff’s complaint, and the majority of this court so holds. I think the decision as made works a great injustice to the plain*808tiff, depriving him of the right to enforce an alleged valid claim against the defendant, amounting to over $109,000.
I, therefore, vote for affirmance of the order, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.