Miller v. Ring

18 Abb. Pr. 244

• Court: New York Supreme Court
• Decided: November 15, 1864
• Status: Published

Opinion

Clerke, J.

It is conceded, that the defendant noticed the cause for trial, and neglected to move for a dismissal of the complaint, when it was reached on the calendar. Undoubtedly, he was not bound to take this course, in order to entitle him to a dismissal of the complaint when the plaintiff has unreasonably neglected to bring the case to trial. (Bowles a. Van Horne, 11 Abbotts’ Pr., 84; S. C., 19 How. Pr., 346.) He has the choice of two methods to compel the plaintiff to proceed to a determination of the action: 1st. Either by noticing the cause for trial; 2d. By a motion, at the special term for motions, to dismiss the complaint.

But, in my opinion, if he resorts to the former, he waives his right to the latter method. If he notices the cause for trial, and, when it is reached on the calendar, fails to move for a dismissal of the complaint, the plaintiff not being ready to proceed, he is himself guilty of neglect, and waives his right. His opportunity is gone; and it would be encouraging neglect to grant his motion for a dismissal of the complaint at special term.

Motion denied, without costs.