Majority
p. 901BROWN v. HERZBERG. (Supreme Court, Appellate Division, First Department. February 5, 1909.) Argued before INGRAHAM, McRAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
Headnote
Dismissal and Nonsuit (§ 60[1] )—Delay in Prosecution.A dismissal of the complaint is required where plaintiff's delay results in the inability of defendant to produce at the trial her most important witnesses, in the absence of a reasonable excuse for the delay.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Dec. Dig. § 60.*]
Appeal from Special Term.
Action by Annie Brown against Nettie Herzberg. Prom an order dismissing,, the complaint, unless plaintiff complied with the terms therein mentioned, defendant appeals. Reversed, and motion granted.
Wilson B. Tipple, for appellant.
A. Delos Kneeland, for respondent. z
The defendant made out a case which required the granting of the motion to dismiss the complaint unless a reasonable excuse was presented by the plaintiff for the delay. We can find no such excuse in the papers submitted. The evidence shows that in consequence of the delay the defendant will be unable to produce upon the trial her most important and material witnesses.
The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.