The Mariel

| S.D.N.Y. | Jan 18, 1881

Choate, D. J.

I am satisfied that the practice of this court does not authorize the dismissal of a libel under rule 136^* for the libellant’s delay in bringing the cause to a hearing after issue joined. The claimant has an equal right under rule 123^† to move the case. On inquiry as to the practice I learn that such has been the construction put upon this rule heretofore. Therefore, although there has been delay which would long ago have barred the claim for staleness if suit had not been brought, or entitled these claimants to a dismissal if libellant had not taken out process; yet rule 123 has at all times put it in the power of the claimant to put an end to the delay. Though it seems that similar rules have elsewhere been differently construed, and though the libellant’s delay is extraordinary, yet it would be unjust to dismiss his libe* consistently with the construction which has hitherto prevailed in this court.

Motion denied.

* Rule 136. If the promovent in a libel or information neglects to proceed in the cause with the dispatch the course of the court demands, the res|>ondent or claimant may have the libel or information dismissed on motion, unless the delay is by order of the judge, or the act of the respondent or claimant.

† Rule 123. So soon as issue is joined the respondent or claimant may notice a cause for hearing on his part, and he thereupon entitled to a decree' dismissing the same, with costs, or such other decree as the case may demand, unless the libellant shall also notice the cause for the same time and proceed to trial or hearing, or obtain a continuance by order of the court on proper cause shown.