Fisher Malting Co. v. Brown

87 N.Y.S. 37 | N.Y. App. Div. | 1904

McLaughlin, J.:

This action was commenced in May, 1900, by the personal service of a summons and complaint, and issue was joined therein by the service of an amended answer on the 21st of August, 1900. No further steps appear to have been taken until on September 18, 1903, a motion was madé, which resulted in the order appealed from5 to dismiss the complaint upon the ground that the plaintiff had unreasonably neglected to proceed in the action. The plaintiff’s attorney then noticed the cause for trial and filed a note of issue. The motion was denied and defendant appeals.

The fact is uncontradicted that after issue had been joined the plaintiff for upwards of three years did nothing whatever to bring the action to trial, and in the, meantime younger issues have been tried in their regular order. These facts, under section 822 of the Code of Civil Procedure and rule 36 of the General Rules of Practice, made out a prima facie case of unreasonable neglect to proceed in the action. Unreasonable neglect having been shown, the burden of excusing the same was thrown upon the plaintiff, but in the affidavit used in opposition to the motion no explanation whatever was either given or attempted. The statement is there made that the action is upon the general calendar and that a notice of trial has been served on behalf of the plaintiff for the first Monday of ^November, 1903, but the fact is not denied that the notice of trial was served after the motion was made to dismiss and the action could not have got upon the calendar until such notice was served. (Code Civ. Proc. § 977.) These acts, therefore, do not tend in the slightest degree to excuse, and have no- bearing whatever upon the neglect for which the defendant asked to have the complaint dismissed. The facts being uncontradicted and no explanation given for the delay, we think the motion should have been granted. The defendant fairly established a ¡prima facie case of neglect on the part of the plaintiff to proceed with the action within section 822 of the Code and rule 36 above cited. (Seymour v. Lake Shore & M. S. R. Co., 12 App. Div. 300; Zafarano v. Baird, 80 id. 144.)

It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to dismiss be granted, with costs of the action and ten dolltrs costs of the motion.

"Van Brunt, P. J.; Patterson, O’Brien and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to dismiss granted, with costs of the action and ten dollars costs of motion.