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Kachel v. Stutz

121 N.Y.S. 979 Court N.Y. App. Div. Decision date 1910-03-11 English

Delivered by McLAUGHLIN, J.

Contents

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p. 979
KACHEL v. STUTZ.
(Supreme Court, Appellate Division, First Department.
March 11, 1910.)

Headnote

Dismissal and Nonsuit (§ 60[1] )—Want on Prosecution.
Where junior issues have been reached for trial, plaintiff must show, in order to defeat a motion to dismiss for want of prosecution, facts sufficient to excuse his apparent neglect to proceed, and in the event of his failure to do so the motion to dismiss should be granted.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. ,§ 141; Dec. Dig. § 60.[1] ]
p. 980
Appeal from Trial Term, New York County.
Action by Eugene E. Kachel against Charles Stutz. From an order denying a motion to dismiss the complaint for want of prosecution, defendant appeals.
Reversed.
Argued before CLARKE, McLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ.
Alfred Beekman, for appellant.

This action was commenced in October, 1907, to recover damages claimed for alleged breach- of contract. In December 1909, the defendant moved to dismiss the complaint for want of prosecution. The motion was denied, and he appeals.

Issue was joined on the. 31st of October, 1907, since which time plaintiff has taken no steps whatever to bring the action to trial. He lias not served a notice of trial, filed note of issue, or placed the cause upon the calendar for trial. Younger issues of substantially the same nature have been reached on the general calendar, tried, and disposed of. The only excuse offered by the plaintiff for not proceeding in the action is to the effect that by reason of his financial condition he has not been able to pay his attorneys a retainer, and they will not prepare the cause or try the action until he has done so, and that he intends to pay them as soon as he is able.

The motion to dismiss should have been granted. The rule is well settled that, where junior issues have been reached for trial, the plaintiff must show, in order to defeat a motion to dismiss for want of prosecution, facts sufficient to excuse his apparent neglect to proceed, and that in the event of his failure to do so the motion should be granted. Anderson v. Hedden & Sons Co., 116 App. Div. 231 , 101 N. Y. Supp. 585 ; Ferber v. Newgold, 133 App. Div. 739 , 118 N. Y. Supp. 214 .

The order appealed from, therefore, should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.