Diamond v. Kaufmann

Seabury, J. The defendant appeals from an order denying his motion to dismiss the action for want of prosecution. The action was commenced in May, 1911, and issue was joined in that month. On February 9, 1912, a new attorney was substituted for the former attorney of the plaintiff. From the date of joining issue until July 18,1913, when the defendant made the motion to dismiss, no step to prosecute the action was taken by the plaintiff, and younger issues had in the meantime been tried. In opposition to the motion an affidavit was presented of an attorney “ associated with ” the plaintiff’s attorney, to the effect that he ‘ ‘ believed that the notice of trial had been served and note of issue filed, and the first intimation that defendant had that these matters of procedure had not been attended to was the receipt of the motion papers.” The court characterized the plaintiff’s excuse as a “ lame one,” but denied the motion simply upon condition “ that the cause be immediately placed on the calendar.” The defendant made out a clear case entitling him to have the action dismissed. Anderson v. V. J. Hedden & Sons Co., 116 App. Div. 231; Pociunas v. American Sugar Refining Co., 74 Misc. Rep. 407; Holtzoff v. Dodge & Olcott Co., 134 App. Div. 353. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Gtuy and Bijtjr, JJ., concur. Order reversed, with ten dollars costs, and motion granted, with ten dollars costs.