The justice had lost jurisdiction but the court had not. (Mosehauer v. Jenkins, 128 App. Div. 825.) The question of laches is not here considered for the reason that the plaintiff has not been heard on that subject by replying affidavits, the defendant having asked no affirmative relief. The defendant can bring up this question by motion to dismiss for failure to prosecute. Cochrane, P. J., Van Kirk, Hinman and Davis, JJ., concur; Whitmyer, J., dissents. Judgment of the County Court reversed on the law, with costs, and the order of the City Court reinstated.