Hyperlawhypertext legal database Armstrong v. Star Co. 154 A.D. 320

← Cases

Armstrong v. Star Co.

154 A.D. 320 Court Second Department, Decision date 1912-12-30 English

Delivered by *321 Rich, J.:

Contents

Majority

p. 320
Philander B. Armstrong, Respondent, v. Star Company, Appellant.
Second Department,
December 30, 1912.

Headnote

Practice — dismissal for failure to prosecute.
Where a plaintiff has done nothing to bring an action to trial for over three years after issue joined, except to serve a notice of trial some time after defendant moved to dismiss for failure to prosecute, during which time younger issues have been tried in them regular order, a prima facie case of unreasonable neglect is established, and the burden is upon the plaintiff to show that his neglect was not unreasonable.
Where in such a case no satisfactory explanation is made, the court is not authorized to exercise its discretion in plaintiff’s favor.
Woodward, J., dissented..
Appeal by the defendant, the Star Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of September, 1912, resettling an order entered in said clerk’s office on the 24th day of August, 1912.
M. De Witt [John T. Sturdevant and Clarence J. Shearn with him on the brief], for the appellant.
George P. Fall, for the respondent.

This appeal is from an order denying defendant’s motion to dismiss the complaint because of the unreasonable neglect of plaintiff to prosecute the action. The action is for libel. The publication complained of was made on December 4, 1907.

This action was commenced September 14, 1909, and issue was joined by the service of an amended answer April 14, 1910, since which time the plaintiff has done nothing toward bringing the action to trial, except that he served a notice of trial August 14, 1912, but this was not done until some time after the defendant moved to dismiss for failure to prosecute.

It appears that younger issues have been tried and disposed of in their regular order, and the burden was upon the plaintiff of showing that his neglect was not unreasonable. This he has failed to do. No excuse is offered by plaintiff in explanation of his delay of over two years. This of itself establishes a prima facie case of unreasonable neglect. Upon an application of this character, where the moving papers make a prima facie case, it is incumbent upon the plaintiff to show that his neglect was not unreasonable, and where, as in this case, no satisfactory explanation is made, the court is not authorized to exercise its discretion in plaintiff’s favor. (Regan v. Milliken Bros., 123 App. Div. 72 ; Ingri v. Star Co., 134 id. 960.)

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

Jenks, P. J., Thomas and Carr, JJ., concurred; Woodward, J., dissented, upon the ground that the Special Term should not be interfered with in cases of this character unless the-circumstances are quite unusual.

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