Jacob v. Thompson — 80 A.D. 526

Majority

p. 526

Emma Lawrence Jacob, Respondent, v. J. Campbell Thompson, Appellant.

Headnote

Laches in moving to have a ease transferred from the Trial to the Special Term calendar.

Where an action, noticed by both parties thereto for trial at the Trial Term, has once been tried at that term, and, after two years of delay, the plaintiff makes a motion to have the case transferred to the Special Term calendar, the motion should be denied on the ground of laches.

Appeal by the defendant, J. Campbell Thompson, 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 31st day of December, 1902, granting the plaintiff’s motion to place the cause upon the Special Term calendar.

William P. Maloney, for the appellant.

Charles De Mart Brower, for the respondent.

We think that the plaintiff’s motion to place the cause on the Special Term calendar should have been denied upon the ground of laches. The action was noticed by both parties for Trial Term and it has there been once tried, and now, after two years of delay, the effort is made to have it taken from the Trial Term calendar and sent to the Special Term. Upon the authority of the following cases, we think that the plaintiff by laches has waived his right to have the

p. 527

issues raised by the answer sent to the Special Term: Tubbs v. Embree ( 89 Hun, 475 ); Mackellar v. Rogers (109 17. N. Y. 468); Boyd v. Boyd ( 12 Misc. Rep. 119 ; affd., 146 27. N. Y. 403).

The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Laughlin, JJ.

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

Cases cited

Boyd v. Boyd 12 Misc. Rep. 119 N.Y.C.P. 1895-04-01 p. 527