128 N.Y.S. 20 | N.Y. App. Term. | 1911
The defendant made a motion in the lower court to dismiss the complaint on account of the plaintiffs’ neglect to prosecute the action. That motion was denied, and from the order entered thereon the defendant appeals to this court.
Issue was joined six years ago, and issues five years younger have been tried in the same court. These facts presented a prima facie case of loches, and the plaintiffs were under the burden of making it appear to the court that the neglect to bring the action to trial has not been unreasonable. This they did not do.
The opinion of the lower court indicates that its decision was based upon certain alleged oral stipulations made out of court between the attorneys for the respective parties. Under well-settled rules of prac
Assuming the stipulations to have been made, which, however, is denied by the attorney for the defendant, they were not binding unon the party sought to be charged, and the court should have disregarded them. A review of the record fails to disclose any reasonable excuse for the loches of the plaintiffs. While it is true that the motion was addressed to the sound discretion of the court, such discretion is a legal discretion, and is reviewable by this court.
As the defendant presented a prima facie case of neglect under rule 36 of the General Rules of Practice, and as the plaintiffs failed to disclose a legal excuse for their failure to prosecute the action, the lower court should have granted the motion made.
The order is reversed, with $10 costs and disbursements, and the complaint is dismissed, with costs. All concur.
