Fleischman v. Mengis

BISCHOFF, J. The explanation given by the plaintiff in attempted excuse for his delay of over 12 years in the prosecution of the action is that the defendant was insolvent, and had promised to pay the claim in suit when his financial condition improved. Nothing in the affidavit submitted in opposition to the motion for a dismissal of the action for unreasonable neglect to proceed supports a determination that the delay was at the defendant’s request. At best, there is a suggestion that he did not object to the plaintiff’s policy of waiting for better-times, but, so far as the plaintiff was charged with the duty to prosecute the action, there is no excuse for his failure to do so. Within the authorities, therefore, the action should have been dismissed. St. Paul’s Church v. Mt. Vernon Co., 119 App. Div. 45, 103 N. Y. Supp. 858; Fisher Malting Co. v. Brown, 92 App. Div. 251, 87 N. Y. Supp. 37. The fact that the defendant had interposed counterclaims in no way affects his right to move for a dismissal for the plaintiff’s unreasonable neglect to proceed. Jacot v. Marks, 46 App. Div. 531, 61 N. Y. Supp. 1040. Order denying motion to dismiss reversed, with $10 costs and disbursements, and motion granted, with $10 costs. Order denying motion for stay reversed, with disbursements to the appellant. All concur.