Miller v. Ring — 18 Abb. Pr. 244

Majority

p. 244

MILLER a. RING.

Supreme Court, First District;

Special Term, November, 1864.

Headnote

Dismissing Complaint.

Where a defendant places a cause on the calendar, and when it is reached, neglects to move to dismiss the complaint, he thereby waives his right to move at a special term to dismiss the complaint for neglect to prosecute.

This cause being at issue, was placed upon the calendar and called in its proper turn, and neither party appearing, went to the foot of the calendar. The defendant subsequently made a motion at chambers for an order dismissing the complaint for unreasonable delay of the plaintiff to prosecute.

It is conceded, that the defendant noticed the cause for trial, and neglected to move for a dismissal of the complaint, when it was reached on the calendar. Undoubtedly, he was not bound to take this course, in order to entitle him to a dismissal of the complaint when the plaintiff has unreasonably neglected to bring the case to trial. (Bowles a. Van Horne, 11 Abbotts’ Pr., 84; S. C., 19 How. Pr., 346 .) He has the choice of two methods to compel the plaintiff to proceed to a determination of the action: 1st. Either by noticing the

p. 245

cause for trial; 2d. By a motion, at the special term for motions, to dismiss the complaint.

But, in my opinion, if he resorts to the former, he waives his right to the latter method. If he notices the cause for trial, and, when it is reached on the calendar, fails to move for a dismissal of the complaint, the plaintiff not being ready to proceed, he is himself guilty of neglect, and waives his right. His opportunity is gone; and it would be encouraging neglect to grant his motion for a dismissal of the complaint at special term.

Motion denied, without costs.