Sweeting v. Staten Island & Midland Railway Co.

176 A.D. 494 | N.Y. App. Div. | 1917

Per Curiam:

Section 405 of the Code of Civil Procedure is a remedial statute to be liberally construed. (Gaines v. City of New York, 215 N. Y. 533, 539; 25 Cyc. 1314.) Plaintiff should be allowed to bring his action renewing his original suit, which had been dismissed on failure to answer the call of the calendar at the Trial Term. Such mistake or inadvertence of the attorney was neither a “voluntary discontinuance” nor a dismissal “ for neglect to prosecute,” which latter term applies to failure to try the cause until after younger issues shall have been tried in their regular order. (General Eules of Practice, rule 36.) This section of the Code of Civil Procedure permits a plaintiff to begin again on causes of action which have failed for some matter not involving the merits, unless the first action has been voluntarily abandoned.

Plaintiff’s averment that the city has ‘ ‘ not settled or adjusted or offered to settle or adjust the said claim,” sufficiently meets the requirement of section 261 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1912, chap. 452); as, from the absence of an offer or overtures for settlement, an inference of failure, omission or refusal follows. Here “neglected” or “refused ” are but the omission after opportunity to do some act for the city’s protection. The language disapproved in Casey v. City of New York (217 N. Y. 192) was the bare negative, “not been adjusted or paid.”

The denial of the city’s motion for judgment is, therefore, affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Thomas, Hells, Eich and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.