Paulson v. New Jersey & New York Railroad — 54 A.D. 189

Majority

p. 189

Anthony Paulson, Appellant, v. New Jersey and New York Railroad Company and Another, Defendants, Impleaded with the Union Bridge Company, Respondent.

Headnote

.Dismissal for a failure to prosecute—it should be limited to the moving defendant — judicial notice taken of the court calendavr where there is no allegation that younger issues haw been tried.

An order granting the motion of one 'of three defendants to dismiss a complaint for a failure to prosecute should limit the dismissal to the moving defendant. "The court will take judicial notice of the condition of its own calendar, and a statement contained in an affidavit, used upon a motion to dismiss a complaint for failure to prosecute, that the plaintiff has for five years omitted to proceed with the action, authorizes the inference that younger issues have been tried during that time.

Appeal by the plaintiff, Anthony Paulson, from an order of the ¡Supreme Court, made at the New York Special Term and entered :n the office of the clerk of the county of New York on the 24th -day of April, 1900, dismissing the complaint because of the plain- ■ tiff’s failure to prosecute the action, and also from an order made at ".the New York Special Term and entered in said clerk’s office on

p. 190

the 4th day of June, 1900, denying the plaintiff’s motion to resettle the order dismissing the complaint.

John H. Whiting, for the appellant.

H. C. Smyth, for the respondent.

It being conceded by the respondent that the affidavit which the appellant moved to have recited in the order dismissing the complaint was used on the motion, the judge at Special Term should have resettled the order accordingly. But as the point which it was sought to raise by the preliminary objection and by the affidavit appears/ from the record, we shall give the appellant the benefit thereof and dispose of the question involved in the appeal without putting him to the trouble of having the order resettled.

The court will take judicial notice of the condition of its own calendars, and the statement that the plaintiff has for five years-omitted to proceed with the action is a sufficient one from which the inference can be drawn that younger issues have been tried. It would, of course, be better, particularly in jury cases, to have the' statement that younger issues have been tried formally embodied in the affidavit upon which the motion ■ to dismiss for failure to prosecute is made; but its absence is not a fatal objection where, as here,, it appears that many years have elapsed without the cause having been moved for trial; and the court, of necessity, is in possession of. the knowledge that during that time younger issues have been tried. Our conclusion, therefore, is that the disposition made in dismissing the complaint ivas, upon the facts presented, within the discretion, of the judge at Special Term.

We think, however, that as but one of the defendants moved, and the other two defendants were not notified, heard or represented on the motion, the complaint should have been dismissed only as against the moving defendant. The order, accordingly, should be modified by so limiting the dismissal to the moving defendant, the Union Bridge Company, and as so modified it should be affirmed, without costs.

Van Brunt, P. J., Rumsey, Patterson and McLaughlin, JJ., concurred.

Order modified by limiting the dismissal to the moving defendant, the Union Bridge Company, and as so modified affirmed,- without costs.