Tuttle v. Dubuque Fire & Marine Insurance of Dubuque

Foote, J.: 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 [805] 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 3G 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 túne 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; Sil [806] verman 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.