Opinion
March 26, 1913.
William H. Harding, for the appellant.
Stewart F. Hancock, for the respondent.
This cause has been at issue since November 20, 1907. Since August 25, 1908, when the order of reference was made, it could have been brought to trial, had plaintiff so desired, at any time on fourteen days' notice. Section 822 of the Code of Civil Procedure provides: "Where the plaintiff unreasonably neglects to proceed in the action against the defendant, * * * the court may, in its discretion, upon the application of the defendant * * * dismiss the complaint as against the moving party or parties, and render judgment accordingly."
And by rule 36 of the General Rules of Practice it is provided: "Whenever an issue of fact in any action pending in any court has been joined, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant, at any time after younger issues shall have been tried in their regular order, may move at Special Term for the dismissal of the complaint, with costs.
"If it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term."
By this Code section and rule it is clearly intended that if a plaintiff unreasonably neglects to bring his case to trial it shall be dismissed by the court on defendant's application.
A delay of four years is plainly unreasonable, unless such delay is satisfactorily excused. We find no sufficient excuse in this case. The affidavit in opposition to the motion is clearly insufficient to justify the delay, and cannot be accepted unless we are to disregard the statute and the rule. If there is any merit in plaintiff's case he could have no difficulty in securing the financial assistance necessary to meet the expenses of the trial. We are not advised that he has ever made any effort to do so, nor does he make any affidavit himself that he intends to bring the case to trial. The authorities are numerous to the effect that delay on the part of the plaintiff for less time than here requires that the complaint should be dismissed unless a better excuse is furnished than in this case. In Kachel v. Stutz ( 137 App. Div. 199) issue was joined October 31, 1907, and the motion to dismiss was made in December, 1909. The excuse offered by the plaintiff for his delay was his financial condition; he had not been able to pay his attorneys. It was held that the delay was unreasonable and the excuse insufficient. (See, also, Seymour v. Lake Shore Michigan Southern R. Co., 12 App. Div. 300; Jacot v. Marks, 46 id. 531; Silverman v. Baruth, 42 id. 21; Zafarano v. Baird, 80 id. 144; Anderson v. Hedden Sons Co., 116 id. 231.)
We think the correct rule is enunciated in these decisions, and that it should be followed in the present case.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
All concurred, except McLENNAN, P.J., who dissented in opinion.
I dissent and vote for affirmance of the order. A motion of this kind is addressed to the discretion of the court at Special Term, and its determination should not be disturbed on appeal unless it is clear that the discretion of the court has been abused. Even though upon the motion papers the case was a proper one for the court to dismiss had it seen fit so to do, yet, in my opinion, there were sufficient grounds to warrant the court, in the exercise of its discretion, to deny the motion upon proper conditions, giving the plaintiff the right to bring the action on for hearing before the referee within a reasonable time. ( Graham v. Ackley, 21 App. Div. 416.) In this case the defendant interposed a counterclaim exceeding the demand made in plaintiff's complaint, and where the defendant in such a case takes no steps to bring the case on for hearing, that fact is entitled to some weight in relieving plaintiff's default when a motion to dismiss for lack of prosecution is made. In such a case the absolute dismissal of the complaint is too harsh a punishment. ( Heymer v. Arthur, 27 N.Y. St. Repr. 105.) In Ellsworth v. Brown (16 Hun, 1) it appeared that an order of reference had been granted, and after several hearings had been had, the referee refused to appoint another hearing unless his fees were paid. The case remained in this situation for over two years, and upon motion to dismiss for failure of plaintiff to prosecute the action, an order was made dismissing the action unless the plaintiff proceeded to another hearing within ninety days. Upon appeal to the General Term, Third Department, the court, while expressing the opinion that this was a very liberal condition, affirmed the order.
In the present case no reason is made to appear why the defendant did not press the action before the referee for four and one-half years after the order of reference was made, although by its answer it has interposed a counterclaim against the plaintiff of over $123,000, and while it may be true that such fact is not necessarily controlling upon the court in determining the motion, still I think it is entitled to be given some weight, as it apparently was, in the consideration of the motion.
Upon the undisputed facts the reversal of the order appealed from results in very great injustice to the plaintiff. It was stated in the affidavit presented to the Special Term on behalf of the plaintiff, and was not denied, that the plaintiff has a good and valid cause of action against the defendant for the sum of $109,576.43. By stipulation of the parties the matter was referred to ex-Judge MERWIN, who resides in Utica, N.Y., to hear, try and determine the same, and an order of reference was entered on the 25th day of August, 1908, and notice of entry served upon defendant's attorney. From that time no steps were taken by either party to bring the case to trial before such referee. The attorneys for the respective parties reside in the same city, but during the entire time defendant's attorney, neither orally or otherwise, even suggested to plaintiff's attorney that he desired to have the trial proceed before the referee, and no complaint in that regard was made until the motion to dismiss the action was made.
I am assuming that no sufficient excuse was made by the plaintiff for his failure to bring the case to trial before the referee, but such failure was acquiesced in by the defendant, at least by its silence, and under those circumstances plaintiff's claim, amounting to over $109,000, a perfectly valid claim, so far as we may know, ought not to be wiped out. I think the court at Special Term properly exercised its discretion in refusing to dismiss the action except upon condition that the case be noticed for hearing before the referee not later than April 1, 1913. It is not suggested that the terms imposed by the order appealed from were not sufficiently severe, but it is urged that there should have been an absolute dismissal of the plaintiff's complaint, and the majority of this court so holds. I think the decision as made works a great injustice to the plaintiff, depriving him of the right to enforce an alleged valid claim against the defendant, amounting to over $109,000.
I, therefore, vote for affirmance of the order, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.