Williams v. Jenkins

134 N.Y.S. 890 | N.Y. App. Term. | 1912

Gut, J.

Defendants appeal from an order denying defendants’ motion for a dismissal of the complaint for failure to prosecute. The action was brought for the purpose of obtaining "a judgment adjudging that the plaintiff acquired a-valid mechanic’s lien on the premises described in the complaint, and a lien on the sum of $1,253.46 deposited by the defendant Edward Coming Company with the clerk of the county of Hew York un February 4, 1908, to secure the discharge of the mechanic’s lien.

The summons and complaint were served.on March 17, 1908, and. issue was finally joined on April 11, 1908. On February 3, 1910, defendants served a notice of trial and filed a note of issue for March 7, 1910, Trial Term, and the case was placed on the calendar and given a calendar number. In September, 1910, the clerk, under tire direction of the court, made up a new calendar, lío new noté of issue was hied by either party, and the action was not placed on the new calendar for September, 1910. The plaintiff has not served any notice of trial of this action, and issues of much yoTmger date than April, 1908, have been tried in their regular order.. The motion to dismiss for want of prosecution was made February 9, 1912, more than three years and nine months since issue was joined, during which time plaintiff has done nothing to bring the ease to trial.

The defendants having made out a prima, facie case of lac\es, the burden was upon the plaintiff to show that the failure to prosecute was not unreasonable. Notman v. J. M. Dully Petroleum Co., 128 N. Y. Supp. 20.

In opposition to the motion, the plaintiff’s counsel presented an affidavit setting forth that the plaintiff for more than a year last past has resided in the state of California, but no sufficient reason is given for her failure to prosecute the case during the preceding three years, or for the failure to take her' testimony if -it would be material.

The plaintiff having failed to show any reasonable excusé for the delay, it was the duty of the court to grant the motion. Mannion v. Steffens, 115 N. Y. Supp. 1087; affd., 135 App. Div. 921.

• The order must, therefore, be reversed with ten dollars costs and disbursements and the motion to- dismiss the complaint granted with ten dollars costs.

Seabury and Gerard, JJ., concur.

Order reversed, with ten dollars costs and disbursements and motion granted, with ten dollars costs.