Majority
p. 752William Smart, Appellant, v. George Erlacher and Charles Kreymborg, Respondents. First Department, February 17, 1911.
Headnote
Practice — restoration, of case to calendar — failure to prosecute.Where tlie plaintiff’s motion to restore a'cause to the calendar was not opposed by the defendant, the latter is not entitled to a dismissal for failure to prosecute where the causé has not been reached since it was restored to the calendar.-
Appeal by the plaintiff; William Smart, from an order of the Supreme Court, made at the New York Special Term and entered in- the office of the clerk of the county of New York on the 9th day of December, 1910, dismissing the complaint for failure to prosecute.
M. Spencer Bevins, for. the appellant.
Carlisle J. Gleason, for the respondents.
This action was commenced November 17, 1906, and issue was joined December 19, 1906,. It appeared for the first time upon the calendar for trial in June, 1908, when it was adjourned to October. The cause not then ajipearing upon the calendar, a motion was made by plaintiff to restore it thereto, which was not.opposed by. defendant,- whereupon an order was made on March 31,1909, granting the motion and restoring the cause to the calendar, at the foot of which it was placed under the number 854. It has never since been
p. 753
reached for trial, and the highest number which had been reached for trial up to the time of the making of the present motion was 719. The cause having been restored to the general calendar without objection, and not having since been reached for trial, the motion to. dismiss it for failure to prosecute should not have been granted. The order appealed from must, therefore,, be reversed, with ten dollars costs and disbursements, and the motion to dismiss denied, with ten dollars costs.
Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to dismiss denied, with ten dollars costs.