McCardell v. Metropolitan Street Railway Co.

108 N.Y.S. 990 | N.Y. App. Div. | 1908

Dissenting Opinion

Rich, J. (dissenting):

I dissent. It appears that younger-issues of the same character have been reached in their regular order upon, the calendar of the *530court and tried and disposed of. Plaintiff excuses the failure to prosecute by showing that, at the time the action was commenced, her counsel relied upon a young man in his office who had charge of all papers in connection with the case, but who left the employment at about that time, and never returned-, without giving counsel any information of the action or even that it-had been instituted, -and he never had anv knowledge-or information in reference to the pending case until served with the papers in the motion to dismiss.

I think, in view of the fact that counsel had no knowledge of the action, that plaintiff ought not. to be charged with neglect, and the order ought, therefore, to be affirmed.

Order reversed, with ten dollars costs and. disbursements, and motion granted, with costs.





Lead Opinion

HooicEr, J.:

The action is for personal injuries. The cause of action arose on September 1, 1899 ; summons was served on August 25, 1902, and issue was joined on October 14, 1902. Subsequent thereto no further steps were taken by the plaintiff. The case was never noticed for trial and note of issue was never filed. This is an appeal by the defendant from an order refusing to dismiss the complaint for lack of prosecution. Issues three years younger, namely, of August, 1905, had been tried. The plaintiff’s attorney seeks to excuse his neglect by. showing that a clerk in his office, who had charge of the matter, went on a protracted spree after the commencement of' the action, and never returned to the attorney’s office; that the attorney never knew of the pendency of this case in his office until the service of the motion papers. We cannot understand how this case could be in the plaintiff’s attorney’s office from 1902 until the making of this motion without his having been aware of the commencement of the action. If the clerk went on the spree at about the time of the commencement of the action and has never returned, and the plaintiff’s attorney has- never discovered the presence of this case in his office, his neglect of his client’s interest is exceedingly gross; it seems impossible that the case could have been in his office for between-four and five years without his having discovered the fact. It is also incomprehensible that if the plaintiff had any case at all she would not have conferred with her lawyer about it during the time that intervened between the commencement of the suit and the making of this motion.

The facts presented by' this* record show a case of inexcusable neglect, if evér one was made out.

The order should .be reversed, with ten dollars costs - and disbursements, and the motion granted, with costs.

Jenks, G-aynor and Miller, JJ., concurred; Rich, J., read for affirmance.