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Gunn v. Metropolitan St. Ry. Co.

101 N.Y.S. 791 Court N.Y. App. Term Decision date 1906-12-11 English

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p. 791
GUNN v. METROPOLITAN ST. RY. CO.
(Supreme Court, Appellate Term.
December 11, 1906.)

Headnote

Appeal—Dismissal op Complaint—Conditional Reversal.
Where a judgment for plaintiff is reversed in June, 1904, and a new trial ordered on grounds not necessarily fatal to recovery, and the complaint is dismissed in October, 1906, for failure to bring the case on for trial, and the magnitude of the judgment obtained indicates that the action is meritorious, and the statute of limitations has run, against the cause of action, the order dismissing the complaint will be reversed, provided plaintiff stipulates within 10 days to try the case when reached and pay $10 costs and defendant’s disbursements on appeal.
Appeal from City Court of New York, Special Term.
Action by Martha Gunn against the Metropolitan Street Railway Company. From an order dismissing the complaint for ■ want of prosecution, plaintiff appeals. Reversed, on conditions.
Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.
William C. Wolf, for appellant.
Henry A. Robinson (Hayard H. Ames, of counsel), for respondent.

This action was begun in 1901 to recover damages for injuries received by plaintiff through the alleged negligence of the defendant. The case was tried in April, 1903, and a verdict rendered in favor of the plaintiff for the sum of $1,000. In June, 1904, the Appellate Term reversed the judgment and ordered a new trial for reasons not necessarily fatal to plaintiff’s recovery upon another trial. 86 N. Y. Supp. 241 . Upon a motion made by defendant an order was entered on October 3, 1906, dismissing the complaint, with costs, and from that order this appeal comes up.

In this case great injustice may be done the plaintiff if this order

p. 792
is sustained. The statute of limitations has run against her cause of action. From the magnitude of the former judgment we may assume there is merit in her claim, and we think that, under all the circumstances shown herein, the dismissal of the complaint is too great a punishment for the neglect charged in not bringing on the case for trial at an earlier date.

The order appealed from will be affirmed, unless the plaintiff stipulates within 10 days, to try the case when reached, and pay the sum of $10 costs and defendant’s disbursements on this appeal, in which event the order appealed from will be reversed, without costs, and the order of Mr. Justice Conlan restoring the case to the calendar will be reinstated; the date of trial to be fixed by the lower court.