Manning v. Wambold

130 N.Y.S. 616 | N.Y. App. Div. | 1911

Per Curiam:

The defendant appeals- from an order of the Special Term entered in Westchester-county denying his motion to dismiss the plaintiff’s complaint for failure to prosecute this action. The action was brought on May 27, 1907, to recover damages for personal injuries sustained through the alleged negligence • of the defendant. On the bringing of the action the plaintiff secured an order of arrest against the defendant, by virtue of which the defendant was arrested and held to bail in the sum of $500. He was released on giving a surety company’s bond, upon which he has. been obliged to pay an annual premium of ten dollars a year ever since. The plaintiff, gave a notice of trial for the April term of 1908, but apparently filed no note of issue to place his case upon the calendar. He did nothing further until October, 1909, when he noticed the case for trial. His client was absent from the State at that time and the case was stricken from the calendar, in which condition it remained until the defendant made this motion in May, 1911. The plaintiff shows no reasonable cause whatever for his long delay. In view of the fact that he caused the defendant to be arrested and put to bail, the • least he could have done would have been to bring his action promptly to trial at one of the numerous terms of this court in Westchester county in the. meantime. While we are loath to interfere with the discretion of the Special Term in matters of this kind, we feel this case presents a situation in which the motion to dismiss should have been granted. The order appealed from is reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint for failure to prosecute is granted, with ten dollars costs.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred; Woodward, J., dissented.

Order reversed, with ten dollars costs and disbursements, arid motion to . dismiss complaint for failure to prosecute1 granted, with ten dollars costs. ,