Manning v. Wambold — 130 N.Y.S. 616

Majority

p. 616

MANNING v. WAMBOLD.

(Supreme Court, Appellate Division, Second Department.

July 27, 1911.)

Headnote

Dismissal and Nonsuit (§ 60^[1] )—Delay in Pbosecution.

A complaint should have been dismissed on defendant’s motion where , no reasonable cause was shown for four years’ delay in prosecuting the suit, and where defendant had been arrested and put to bail.

[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.^[1] ]

Woodward, J., dissenting.

Appeal from Special Term, Westchester County.

Action by Michael J. Manning against Charles Wambold. Judgment refusing to dismiss the complaint, and defendant appeals.

Reversed, and motion granted.

Argued before JENKS, P. J., and THOMAS, WOODWARD, CARR, and RICH, JJ.

Edward A. Pfeifer, for appellant..

Rawson L,. Smith, for respondent.

The defendant appeals from an order of the Special Term entered in Westchester county, denying his motion to dismiss the plaintiff’s complaint for failure to prosecute this action. The action was brought on May 27, 1907, to recover damages for personal injuries sustained through the alleged negligence of the defendant. On the bringing of the action, the plaintiff secured an order of arrest against the defendant, by virtue of which the defendant was arrested and held to bail in the sum-of $500. He was released on giving a surety company’s bond, upon which he has been obliged to pay an annual premium of $10 a year ever since. The plaintiff gave a notice of trial for the April term of 1908, but apparently filed no note of issue to place his case upon the calendar. He did nothing further until October, 1909, when he noticed the case for trial. His client was absent from the state at that time, and the case was stricken ' from the calendar, in which condition it remained until the defendant made this motion in May, 1911. The plaintiff shows no reasonable cause whatever for his long delay. In view of the fact that he caused the defendant to be arrested and put to bail, the least he could have done would have been to bring his action promptly to trial at one of the numerous terms of this court in Westchester county in the meantime. While we are loath to interfere with the discretion of the Special Term in matters of this kind, we feel this case presents a situation in which the motion to dismiss should have- been granted. The order appealed from is reversed, with $10 costs and disbursements, and the motion to dismiss the complaint for failure to prosecute is granted, with $10 costs.

WOODWARD, J., dissents.