Heymer v. Arthur — 27 N.Y. St. Rep. 105

Majority

p. 105

Samuel W. Heymer, App’lt, v. Mary A. Arthur, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Dismissal of complaint—When not gbanted fob want of prosecution.

Where defendant has not previously shown any disposition to press the ease for trial, hut has connived at the delays, and plaintiff offers to place it upon the short cause calendar, the complaint should not he dismissed for want of prosecution.

p. 106

Appeal from an order dismissing complaint for lack of prosecution and also from a judgment entered upon said order.

Moses R. Crow, for app’lt; Francis H. Scott, for resp’t.

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 ten dollars costs of the motion.

The judgment necessarily follows with the reversal of the order.

Daniels and Bartlett, JJ., concur.