Schulz v. Griffith — 112 N.Y.S. 1054

Majority

p. 1054

SCHULZ et al. v. GRIFFITH.

(Supreme Court, Appellate Term.

November 24, 1908.)

Headnote

Dismissal and Nonsuit (§ 60*)—Prosecution.

Where issue was joined on March 10th, and defendant’s attorney requested plaintiff’s attorney not to prosecute the action as defendant had' just lost her husband and was in straitened circumstances, and on being informed on July 16th, by defendant’s attorney, that defendant could not pay anything, plaintiff's attorney stated that he would not prosecute the action “inasmuch as a judgment would be of no value,” a motion to dismiss for unreasonable neglect made two weeks thereafter was properly denied. ■ .

[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 147; Dec. Dig. § 60.*]

•For bther oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r -Indexes

p. 1055

Appeal from City Court of New York, Trial Term.

Action by Charles Schulz and another against Mary Griffith. From an order denying a motion to dismiss the complaint, defendant appeals.

Affirmed.

Argued before GIEDERSEEEVE, P. J., and MacEEAN and SEA-BURY, JJ.

Ernst, Lowenstein & Cane (Bernard M. E. Ernst, of counsel),' for appellant.

Frank Thom (Philip Cohen, of counsel), for respondents.

The defendant appeals from an order dated June 29, 1906, denying her motion to dismiss the complaint herein for failure to prosecute. It appears that issue was joined on March 10, 1906, and that defendant’s attorney requested the attorney 'for the plaintiffs “not to prosecute the action against the defendant, as she was a woman who had just lost her husband, and that she had been left in straitened circumstances.” Then the attorney for the plaintiffs proposed to discontinue if the defendant would pay the rent for one month, the action 'being one to recoverffor rent, but was informed on July 16,1906, by the attorney for the defendant that the defendant was not in a position to pay anything. Thereupon he stated that he would not prosecute the case “inasmuch as a judgment would be of no value.” In view of the request not to prosecute made by the attorney for the defendant, she may not now well claim unreasonable neglect on the part of the plaintiffs to proceed with the action, and the discretionary order of the court below should remain undisturbed.

Order affirmed, with $10 costs and disbursements. All concur.