1. The alleged irregularity of defendants appear in the affidavit served, and the several papers annexed, and the error complained of is sufficiently indicated in those papers (Blake agt. Locey 6 How. Pr. R. 108). The new rule (25) did not go into effect until the first day of October, after the notice of this motion was served.
2. Neither do I think the plaintiffs have been guilty of such laches, as form a sufficient objection to their making this motion at the present time. Notice of the order obtained by defendants was not served until the 29th of June last, and the attorney believing there was some mistake in obtaining it, from the facts stated in his affidavit, wrote to the clerk of Washington county,' and did not obtain a correct copy of the order until the 20th of July, too late to prepare papers and move for any special term before the present, even from the first service. The general term in September, was not the place for hearing motions of this kind, and this being the county where the place of trial is designated, would seem to be the proper one for making the motion.
3. The defendants were irregular in taking an order to dismiss the complaint, not having placed the cause on the calendar, in pursuance of their notice (Code, § 256, 258). It does not appear from the papers that the cause was placed on the calendar at all The plaintiffs’ attorney attended court the second day of the circuit, and not finding the cause on the calendar, and being induced to believe by the partner of defendants’ attorney, that there was no intention to move in the cause, returned home as he had a right to do, under the circumstances. He ivas clearly misled, and the order should be set aside. If defendants had chosen, they might have taken the other course, bv motion to dismiss the *490complaint for the want of notice of hearing by plaintiffs. But they elected to take another remedy, and must be confined to the practice by which it is regulated.
The order dismissing the complaint must be set aside, the costs of this motion to abide the event of the suit.