Fassett v. Valley Feed & Supply Co.

283 A.D. 1081, 131 N.Y.S.2d 437, 1954 N.Y. App. Div. LEXIS 6379

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1954
• Status: Published

Opinion

Defendant appeals from an order denying its motion to dismiss the complaint because of plaintiff’s unreasonable neglect to prosecute the action. Order reversed on the law and facts, with $10 costs, and motion granted, with $10 costs. The delay of over four years after joinder of issue, during which time the cause of action was not noticed for trial, with no reasonable excuse offered for the delay, and without a showing of merit, requires dismissal of the complaint. (Smith V. Schiller, 279 App. Div. 755; Giovannucci v. Brooklyn & Richmond Ferry Co., 278 App. Div. 861, and cases cited therein.) The activity of plaintiff, stirred by the making of the motion to dismiss, does not justify the denial of the motion. (Fisher Malting Co. v. Brown, 92 App. Div. 251; Sayers v. Leypoldt, 190 App. Div. 949.) Nolan, P. J., Adel, MacCrate, Beldock and Murphy, JJ., concur.