Roy v. Thompson — 8 N.Y. Super. Ct. 636

Majority

p. 636

Roy v. Thompson.

November, 1852.

Headnote

A defendant may, in all cases, move for a dismissal of the complaint, where the plaintiff neglects to bring the cause to trial according to the course and practice of the court, without being himself bound to notice the cause for trial.

It was held in this case, by Bosworth, Justice, with the concurrence of all the judges, that in order to entitle a defendant to move for a dismissal of the complaint, he was not bound himself to notice the cause for trial, but might make the motion, in all cases, where the plaintiff had neglected to bring the cause to trial, according to the course and practice of the court. The affidavit, however, upon which the motion is founded, must show that the cause was at issue in time to have been noticed, and that at the term for which it ought to have been noticed, younger issues had been tried. ■

But it"is only a judgment of dismissal that can be founded upon such a motion. When a defendant claims affirmative relief, legal or equitable, the duty of an actor in bringing the cause to trial devolves upon him. He can only obtain the relief, when the cause is brought to a trial, upon his own notice, or that of the plaintiff. (Vide No. 21, of the rules of the Supreme Court, as last amended.)