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Fleischman v. Mengis

113 N.Y.S. 515 Court N.Y. App. Term Decision date 1908-12-15 English

Delivered by BISCHOFF, J.

Contents

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p. 515
FLEISCHMAN v. MENGIS.
(Supreme Court, Appellate Term.
December 15, 1908.)

Headnote

1. Dismissal and Nonsuit (§ 60*)—Delay in Prosecution.
It was error to refuse to dismiss for 12 years’ delay in. prosecuting the action, where plaintiff’s only excuse was defendant’s insolvency and promise, to pay the claim sued on when his pecuniary condition improved, and where defendant did not request the delay, at most not objecting thereto.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140, 142; Dec. Dig. § 60.*]
p. 516
2. Dismissal and Nonsuit (§ 50*)—Delay in Prosecution—Effect of Counterclaims.
Tha!t defendant had interposed counterclaims does not affect his right to move for a dismissal for plaintiff’s unreasonable neglect to proceed.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 102; Dec. Dig. § 50.*]
Appeal from City Court of New York, Special Term.
Action by Samuel Fleischman against Morris C. Mengis. From an order refusing to dismiss for want of prosecution, defendant appeals.
Reversed, and motion granted, and order denying motion for stay reversed.
Argued before GILDERSEEEVE, P. J., and BISCHOFF and GUY, JJ. .
James E. Chandler, for appellant.
Martin Paskus, for respondent.

The explanation given by the plaintiff in attempted excuse for his delay of over 12 years in the prosecution of the action is that the defendant was insolvent, and had promised to pay the claim in suit when his financial condition improved. Nothing in the affidavit submitted in opposition to the motion for a dismissal of the action for unreasonable neglect to proceed supports a determination that the delay was at the defendant’s request. At best, there is a suggestion that he did not object to the plaintiff’s policy of waiting for better-times, but, so far as the plaintiff was charged with the duty to prosecute the action, there is no excuse for his failure to do so. Within the authorities, therefore, the action should have been dismissed. St. Paul’s Church v. Mt. Vernon Co., 119 App. Div. 45 , 103 N. Y. Supp. 858 ; Fisher Malting Co. v. Brown, 92 App. Div. 251 , 87 N. Y. Supp. 37 . The fact that the defendant had interposed counterclaims in no way affects his right to move for a dismissal for the plaintiff’s unreasonable neglect to proceed. Jacot v. Marks, 46 App. Div. 531 , 61 N. Y. Supp. 1040 .

Order denying motion to dismiss reversed, with $10 costs and disbursements, and motion granted, with $10 costs. Order denying motion for stay reversed, with disbursements to the appellant. All concur.

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