Hauben v. Hudson & Manhattan Railroad

97 Misc. 392

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1916
• Status: Published

Opinion

Whitaker, J.

The above action was for false imprisonment. The summons and complaint were served upon the defendant on the 20th day of February, 1916. Thereafter issue was joined on February 26,1916, by the service of the answer which was a general-denial. No note of issue has ever been filed and no notice of trial was served until after the defendant made the present motion. Defendant' noticed the motion for dismissal for the 8th day .of June, 1916, at which time younger issues had been heard and disposed of. The court denied the motion without opinion.

The excuse alleged by the plaintiff for non-prosecution is that plaintiff’s counsel in moving his office mislaid the papers. This was not a legal excuse. .

The service of notice of trial by plaintiff’s attorney after the motion to dismiss had been made was of no avail to the plaintiff. Holtzoff v. Dodge & Olcott Co., 134 App. Div. 353.

The rule requiring reasonable diligence upon the part of plaintiffs in prosecuting actions brought by them is a salutary one and should be enforced unless a proper excuse is shown.

Order reversed, with ten dollars costs, and motion granted, with ten dollars costs.

Lehman and Finch, JJ., concur.

Order reversed, with costs.