Bauer v. Hart — 122 A.D. 41

Majority

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Louis Bauer, Respondent, v. George S. Hart and Others, Appellants, Impleaded with John L. Macaulay and Others.

First Department,

November 22, 1907.

Headnote

Practice —• failure to prosecute action.

Order denying a motion to dismiss the complaint for failure to prosecute an action against directors of a corporation, affirmed.

Appeal by the defendants, George S. Hart and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of September, 1907, denying the said defendants’ motion to dismiss the complaint herein as to them because of the failure of the plaintiff to prosecute.'

Alfred H. Holbrook, for the appellants.

H. V. Rutherford, for the respondent.

This action, which was to charge the trustees of a corporation with the liability imposed by the act of incorporation, was com

p. 42

inenced in March, 1892. There had been an interlocutory judgment entered on January 13, 1899, which in April, 1903, was reversed by this court on the appeal of seven of the defendants, including the moving parties. (Bauer v. Parker, 82 App. Div. 289 .) Since that time several of the defendants have died and there has been delay in reviving the actions against their personal representatives, and the. case has not been again brought on for trial. We have come to the conclusion that the court below was justified in denying this motion upon the'papers presented. We express no opinion upon the effect of the' fact that the indebtedness of the corporation largely exceeds the liability of all the directors as to the necessity of making all of the directors or their personal representatives parties. That question can "be submitted and determined upon" the trial of the action. We think however, that the case should now be disposed of, and the affirmance of this order is without prejudice to a renewal of the motion in the event that the plaintiff should not promptly bring the case on for trial.

The order is, therefore, affirmed, with, ten dollars costs" and disbursements.

Patterson, P. J., McLaughlin, .Houghton and Scott, JJ., concurred.

Order affirmed, with ten dollars costs- and disbursements.