Brown v. Herzberg — 130 A.D. 894

Majority

p. 894

First Department,

February, 1909.

Annie Brown, Respondent, v. Nettie Herzberg, Appellant.

Headnote

Practice — dismissal of complaint — unreasonable delay.

Appeal from an order entered in the New York county clerk’s office on the 16th day of October, 1908, dismissing the complaint unless plaintiff complied with the terms therein mentioned.

The defendant made out a case which required the granting of the motion to dismiss the complaint unless a reasonable excuse was presented by' the plaintiff for the delay. . We can find no such excuse in the papers submitted. ■The evidence shows that in consequence of the delay the defendant will be unable to produce upon' the trial her most important and material witnesses. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.