Kachel v. Stutz

137 A.D. 199, 121 N.Y.S. 979, 1910 N.Y. App. Div. LEXIS 638

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1910
• Status: Published

Opinion

McLaughlin, J.:

This action was commenced in October, 1907, to recover damages claimed for alleged breach of contract. In December, 1909, the defendant moved to dismiss the complaint for want of prosecution. The motion was denied and he appeals.

Issue was joined, on the 31st of October, 1907, since which time plaintiff lias taken no steps whatever to bring the action to trial. He has not served a notice of trial, filed note of issue, or placed the cause upon the calendar for trial. Younger issues of substantially the same nature have- been reached, on the general calendar, tried and disposed of. The only excuse offered by the plaintiff for not proceeding in the action is to the effect that, by reason of his financial condition, he has not been able to pay his attorneys a retainer, and they will not prepare the cause or try the Action until he. has done so and that he intends to pay them as soon as he is able.

The motion to dismiss should have been granted. The rule is well settled that where junior issues have been reached for trial the plaintiff must show, in order to defeat a motion to dismiss for want of prosecution, facts sufficient to excuse his. apparent neglect to proceed, and that in the event of his failure to do so, the motion should be granted. (Anderson v. Hedden & Sons Co., 116 App. Div. 231; Ferber v. Newgold, 133 id. 739.)

The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Clarke, Laughlin, Scott and Dowling, JJ., concurred.'

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