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Smart v. Erlacher

127 N.Y.S. 720 Court N.Y. App. Div. Decision date 1911-02-17 English

Delivered by DOWLING, J.

Contents

Majority

p. 720
SMART v. ERLACHER et al.
(Supreme Court, Appellate Division, First Department.
February 17, 1911.)

Headnote

Dismissal and Nonsuit (§ 60[1] )—Failure to Prosecute.
, Where an action, on appearance upon the trial calendar, was adjourned, and on failing to reappear was, on uncontested motion of plaintiff, reinstated, it cannot, before being reached the second time, be dismissed for failure to prosecute.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.[1] ]
Appeal from Special Term, New York County.
Motion by George Erlacher and another to dismiss a complaint filed by William Smart in an action by him against George Erlacher and another for failure to prosecute. From an order granting the motion, Smart appeals.
Order reversed.
Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, MILLER, and DOWLING, JJ.
M. Spencer Bevins, for appellant.
Carlisle J. Gleason, for respondents.

This action was commenced November 17, 1906, and issue was joined December 19, 1906. It appeared for the first time upon the'calendar for trial in June, 1908, when it was adjourned to October. The cause not then appearing upon the calendar, a motion was made by plaintiff to restore it thereto, which was not opposed by defendant, whereupon an order was made on March 31, 1909, granting the motion and restoring the cause to the calendar, at the foot of which it was placed under the number 854. It has never since been reached for trial, and the highest number which had been reached for trial up to the time of the making of the present motion was 719. The cause having been restored to the general calendar without objection, and not having since been reached for trial, the motion to dismiss it for failure to prosecute should not have been granted.

The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion to dismiss denied, with $10 costs.

All concur.