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Heymer v. Arthur

7 N.Y.S. 437 Court N.Y. Gen. Term Decision date 1889-11-07 English

Delivered by Van Brunt, P. J.

Contents

Majority

p. 437
Heymer v. Arthur.
(Supreme Court, General Term, First Department
November 7, 1889.)

Headnote

Dismissal for Want of Prosecution.
Where it appears from plaintiff’s affidavits, on a motion to dismiss a complaint for want of prosecution, that the delays were partially caused by defendant, and were connived at by her or her counsel, and that defendant had showed no disposition to press the case for trial, and plaintiff offers to place the case on the day calendar or short-cause calendar immediately for trial, the complaint should not be dismissed, but plaintiff should be compelled to stipulate to try the case at the next term, and to pay costs of the motion.
Appeal from special term, New York county.
Action by Samuel W. Heymer against Mary A. Arthur, as administratrix of the estate of Thomas M. Argali, deceased. Plaintiff appeals from an order dismissing the complaint for want of prosecution.
Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.
Moses II. Crow, for appellant. Francis M. Scott, for respondent.

It appears from the affidavit of the plaintiff that the delays arising in the trial of this case were partially caused by the defendant, and seem to have been connived at by her or her counsel. Prior to the making of this motion, it does not appear that the defendant showed any disposition to press the case for trial. At the time of making this motion, the plaintiff offered to place the case on the day calendar or short-cause calendar immediately for trial, if the defendant so desired. We think, under the circumstances of this case, that it was too harsh a punishment to dismiss his action. Ample justice would have been done by compelling the plaintiff to stipulate to try the case at the next term of the court, and to pay all costs of the motion. The order appealed from should therefore be reversed, but without costs, and the motion denied, upon the giving of such a stipulation by the plaintiff, and the payment of $10 costs of the motion. The judgment necessarily follows with the reversal of the order. All concur.