87 N.Y.S. 38 | N.Y. App. Div. | 1904
Defendant appeals from an order denying a motion to dismiss the complaint on the ground that plaintiff has unreasonably neglected to. prosecute the action. Issue was joined in the action on August 21, 1900. The motion was made September 18, 1903, The facts upon which defendant claimed that he' was entitled to have the complaint dismissed are similar to those stated in Fisher Malting Co. v. Brown (92 App. Div. 251), and it is, therefore, unnecessary to restate them. In the affidavit of the plaintiff’s attorney used in opposition to the motion the statement is made that a note of issue was filed on the 22d day of August, 1902, but the fact is hot denied that no notice of trial was served until October, 1903, and until after the motion to dismiss was made. The note of issue filed was ineffectual because the action had not then been noticed for trial. (Code Civ. Proc. § 977.) No excuse , was given for the delay, except the bare statement that through “ inadvertence ” the notice of trial was not sooner served. If the ' mere statement of “ inadvertence ” is to be treated as furnishing an adequate excuse for delay of over three years, then section 822 of the Code of Civil Procedure and rule 36 of the General Rules of Practice serve little purpose. Such a statement alone furnishes no basis whatever for the exercise of judicial discretion. No excuse for the neglect to prosecute the action was given by plaintiff, and for the reasons stated in the opinion delivered in Fisher Malting Co. v. Brown (supra) the motion to dismiss the complaint should have been granted.
It follows, therefore, that, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to dismiss granted, with costs of the action and ten dollars costs of the motion.
Van Beunt, P. J., Patteeson, O’Beien and Laughlin, JJ., concurred.
Order reversed, with ten dollars .costs and disbursements, and motion to dismiss granted, with costs of action and ten dollars' costs of motion.
