Holland Trust Co. v. Farrow — 23 N.Y.S. 1142

Majority

p. 1142

HOLLAND TRUST CO. v. FARROW.

(Supreme Court, General Term, First Department.

May 12, 1893.)

Headnote

Action by the Holland Trust Company against Edward S. Farrow, impleaded, etc. The complaint was dismissed1 for want of prosecution, and judgment directed for defendant Farrow.

Argued before VAN BRUNT, P. X, and O’BRIEN and INGRAHAM, JX

E. H. Murphy, for appellant.

Nichols & Bacon, (Alexander S. Bacon, of counsel,) for respondent.

We think the excuse presented by the plaintiff for not bringing tins case to trial was sufficient to justify the denial of the motion upon plaintiff’s placing the case upon the calendar, and paying $10 costs of motion. The order should therefore be modified by providing that upon the payment by the plaintiff of $10 costs of motion in the court below within 10 days after the service of the order on the appeal, and noticing this case, and placing the same upon the calendar for the next circuit court, the motion to dismiss is denied; that, unless such costs are paid, and the case noticed and placed upon the calendar, as aforesaid, then the order is affirmed; such modification to be without costs of this appeal.