Heymer v. Arthur — 4 Silv. Sup. 430

Majority

p. 430

Samuel W. Heymer, Appellant, v. Mary A. Arthur, Respondent.

Supreme Court, First Department, General Term,

November 7, 1889.

Headnote

Trial. Dismissal of complaint.—Where the delays in the trial of an action were partially caused and connived at by the defendant, and it does not appear that he has shown any disposition to press the cause for trial, it should not be dismissed for want of prosecution, in case the plaintiff offers t'o place it upon the short cause calendar.

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

Moses JR. Crow, for appellant.

Francis HJ. 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.

p. 431

The order appealed from should, therefore, he 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 Babtlett, JJ., concur.