Schulz v. Griffith

112 N.Y.S. 1054

Opinion

MacEEAN, J.

The defendant appeals from an order dated June 29, 1906, denying her motion to dismiss the complaint herein for failure to prosecute. It appears that issue was joined on March 10, 1906, and that defendant’s attorney requested the attorney 'for the plaintiffs “not to prosecute the action against the defendant, as she was a woman who had just lost her husband, and that she had been left in straitened circumstances.” Then the attorney for the plaintiffs proposed to discontinue if the defendant would pay the rent for one month, the action 'being one to recoverffor rent, but was informed on July 16,1906, by the attorney for the defendant that the defendant was not in a position to pay anything. Thereupon he stated that he would not prosecute the case “inasmuch as a judgment would be of no value.” In view of the request not to prosecute made by the attorney for the defendant, she may not now well claim unreasonable neglect on the part of the plaintiffs to proceed with the action, and the discretionary order of the court below should remain undisturbed.

Order affirmed, with $10 costs and disbursements. All concur.