151 N.Y.S. 63 | N.Y. Sup. Ct. | 1915
The plaintiff herein appeals from a judgment dismissing the complaint for failure to prosecute. The case had previously been marked “reserved generally” and had never been restored to the trial calendar although apparently the plaintiff’s attorney shortly before the motion to dismiss was made had attempted to make a motion for this purpose but had erroneously entitled his motion papers. Aside from any question of whether the court was justified in the exercise of a proper discretion in granting the motion to dismiss under such circumstances, I am of the opinion that the court erred because it had no jurisdiction to consider the motion. Under the Municipal Court rules either party could move to restore, a. cause from the calendar of cases marked “reserved generally ’ ’ to the day calendar and if upon the day set for trial the plaintiff is not ready the trial justice has undoubted power to dismiss the complaint. Until, however, a case is moved before a trial justice for trial I can find no power in the court to entertain a motion to dismiss. The Municipal Court is of course a court of limited jurisdiction and possesses no powers other than those conferred by the statute. Section 822 of the Code of Civil Procedure is the only statute which could possibly be construed as conferring this power on the court but that section is part of chapter VIII of the Code and it is specifically provided by subdi
It follows that section 822 is applicable only to the courts specified in the last amendment of subdivision 4 of section 3347 and is not applicable to the Municipal Court.
Order and judgment must therefore be reversed, with costs, and the motion to dismiss be denied with leave to either party to move that the case be placed on the day calendar.
Delany and Whitaker, JJ., concur.
Order and judgment reversed, with costs.