107 N.Y.S. 722 | N.Y. App. Div. | 1907
This record presents an appeal by the defendants from an order of the Special Term denying their motion to dismiss the complaint for laches.
It is not disputed that after issue joined the plaintiff for three years has done nothing towards bringing the action to trial, and in the meantime younger.issues have been tried in their regular order. These facts, under section 822 of the Code of Civil Procedure and rule 36 of the General Buies of Practice, established a prima faoie case of unreasonable neglect and threw upon the plaintiff the burden of satisfactorily excusing the same. In the affidavit used in opposition to the motion the only reason asserted for the delay is that plaintiff’s attorneys were copartners when they brought the action and in June, 1905, dissolved and until a few weeks before the motion was noticed had not agreed as to substitution in the actions brought by them as copartners. This fact does not in any degree tend to excuse the delay, and does not meet the requirement of the rule that before the court is authorized to exercise its discretion in favor of -a negligent plaintiff it must be made to appear that the neglect to bring the action to trial has not been unreasonable.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the defendants’ motion to dismiss the complaint granted.
Woodward, Gaynor and Miller, J J., concurred; IIirschberg, P. J., not voting. '
Order reversed, with ten dollars costs and disbursements, and . defendants’ motion to dismiss the complaint granted, with costs.
