Bryon v. Bernstein — 133 N.Y.S. 792

Majority

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BRYON v. BERNSTEIN et al.

(Supreme Court, Appellate Division, First Department.

February 16, 1912.)

Headnote

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

The trial of an action in March resulted in a mistrial. In the following September the action was dismissed for failure to prosecute. In the meantime the summer vacation had intervened and there had been a change of attorneys. Held, that tie delay was insufficient to justify the dismissal.

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

Appeal from Special Term, New York County.

Action by William J. Bryon against Paul Bernstein and others. Prom an order dismissing the action for failure to prosecute, plaintiff appeals.

Reversed, and motion to dismiss denied.

See, also, 132 N. Y. Supp. 1123 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-LIN, CLARKE, and MILLER, JJ. '

Jonathan Deyo, for appellant.

Nathan Greenbaum (Albert J. Rifkind, of counsel), for respondents.

The action was brought to recover damages for injuries alleged to have been sustained by the plaintiff through the

p. 793

negligence of the defendants. Issue was joined June 2, 1908. The case appeared on the call calendar in February, 1911, and was reached for trial March 13, 1911. The court declared a mistrial and permitted the withdrawal of a juror.

This motion for dismissal of the complaint for failure to prosecute was made September 28, 1911, upon the ground that nothing had been done by the plaintiff since March 13, 1911. It appears that the plaintiff, while walking on the street, was struck on the head by a hammer which he alleges was dropped by an employé of the defendants. Since the mistrial there has been a change of attorneys, and the appellant asserts that he is ready and anxious to go to trial. We think that under the circumstances he should have an opportunity to try his case. As the summer vacation intervened, the delay, from the middle of March, when the first trial was had, until the following October, was not such as to compel the granting of the motion to dismiss.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.