Holtzoff v. Dodge & Olcott Co.

This is an action, predicated on a statute of the state of New Jersey, to recover for the death of Victor Newman, who met his death on the 18th day of June, 1905, while in the employ of the defendant, by an explosion of chemicals. The summons in the action was served on the defendant on the 15th day of June, 1906.- The plaintiff obtained eight extensions of time within which to serve the complaint, and was at one time in default, but finally served it on the 2'0th day of November, 1906. Issue was joined on the 7th day of December thereafter. On the 28th day of December, 1906, the plaintiff obtained an extension of 10 days within which to serve an amended complaint; but no amended complaint was served, and no further extension therefor was obtained. The plaintiff has neither noticed the case for trial nor filed a note of issue. Issues of August 1, 1907, in causes not preferred, have been reached for trial in the regular order. Upon these facts the motion for a dismissal of the complaint was made.

No affidavit was presented by the administrator, or by either of his attorneys of record, in opposition to the motion. The only opposition to the motion was based on the affidavit of an attorney and counselor, who therein states that he represented the plaintiff in retaining Messrs. Cantwell & Moore, the attorneys of record, to bring this action, and that after issue was joined “he undertook to place the case on the calendar, and for that purpose received the papers from” the attorneys of record, and “thereupon instructed one of his clerks to place same on the calendar”; that at this time a fire broke out in his offices, “and a great many papers were destroyed”; that, owing to the fact that he was not the attorney of record, no record of the case was kept in his office, “and owing to the fact that the papers were destroyed, as he has now learned, deponent had no means of knowing that the case was not put on the calendar, and was always under the impression that the case was put on the calendar, and so were Cantwell & Moore for the reasons aforestated, and deponent had only 'learned of said

These facts, offered in explanation of the presumptive failure of the plaintiff to prosecute this action with due diligence, arising from c the fact that junior issues have been reached on the regular call of the calendar, are wholly insufficient, and constitute no excuse whatsoever. No one, having any responsible connection with the litigation, presents an affidavit. There is nothing to show that the plaintiff intends, or even desires, to prosecute the action. The motion was returnable on the 25th day of May, 1909, nearly 2% years after the action was at issue, and it appears without controversy that during the interim no attention was given to the action until after the service of the motion papers for a dismissal of the complaint. We have repeatedly declared the rule that where the moving papers on such a motion show a prima facie case of failure to prosecute the action with due diligence, and a satisfactory excuse for such failure is not presented, the motion should be granted, notwithstanding the fact that the plaintiff has been stirred to activity by the notice of motion, for subsequent diligence is no excuse for past negligence. Zafarano v. Baird, 80 App. Div. 144 , 80 N. Y. Supp. 510 ; Anderson v. Hedden & Sons, 116 App. Div. 231 , 101 N. Y. Supp. 585 ; Mladinich v. Livingston, 112 App. Div. 181 , 98 N. Y. Supp. 46 ; Fisher Malting Co. v. Brown, 92 App. Div. 251 , 87 N. Y. Supp. 37 ; McGrath, Adm’x, v. Murtha & Schmohl Co., 128 App. Div. 278 , 112 N. Y. Supp. 679 .

It follows, therefore, that the order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.