66 N.Y.S. 364 | N.Y. App. Div. | 1900
It being conceded by the respondent that the affidavit which the appellant moved to have recited in the order dismissing the complaint was used on the motion, the judge at Special Term should have resettled the order accordingly. But as the point which it was sought to raise by the preliminary objection and by the affidavit appears/ from the record, we shall give the appellant the benefit thereof and dispose of the question involved in the appeal without putting him to the trouble of having the order resettled.
The court will take judicial notice of the condition of its own calendars, and the statement that the plaintiff has for five years-omitted to proceed with the action is a sufficient one from which the inference can be drawn that younger issues have been tried. It would, of course, be better, particularly in jury cases, to have the' statement that younger issues have been tried formally embodied in the affidavit upon which the motion ■ to dismiss for failure to prosecute is made; but its absence is not a fatal objection where, as here,, it appears that many years have elapsed without the cause having been moved for trial; and the court, of necessity, is in possession of. the knowledge that during that time younger issues have been tried. Our conclusion, therefore, is that the disposition made in dismissing the complaint ivas, upon the facts presented, within the discretion, of the judge at Special Term.
We think, however, that as but one of the defendants moved, and the other two defendants were not notified, heard or represented on the motion, the complaint should have been dismissed only as against the moving defendant. The order, accordingly, should be modified by so limiting the dismissal to the moving defendant, the Union Bridge Company, and as so modified it should be affirmed, without costs.
Van Brunt, P. J., Rumsey, Patterson and McLaughlin, JJ., concurred.
Order modified by limiting the dismissal to the moving defendant, the Union Bridge Company, and as so modified affirmed,- without costs.
