Opinion
October 22, 1909.
Edward P. Mowton, for the appellant.
Simon O. Pollock, for the respondent.
This is an action predicated on a statute of the State of New Jersey, to recover for the death of Victor Newman, who met his death on the 18th day of June, 1905, while in the employ of the defendant, by an explosion of chemicals. The summons in the action was served on the defendant on the 15th day of June, 1906. The plaintiff obtained eight extensions of time within which to serve the complaint and was at one time in default, but finally served it on the 20th day of November, 1906. Issue was joined on the seventh day of December thereafter. On the 28th day of December, 1906, the plaintiff obtained an extension of ten days within which to serve an amended complaint, but no amended complaint was served, and no further extension therefor was obtained. The plaintiff has neither noticed the case for trial nor filed a note of issue. Issues of August 1, 1907, in causes not preferred, have been reached for trial in the regular order. Upon these facts the motion for a dismissal of the complaint was made. No affidavit was presented by the administrator or by either of his attorneys of record in opposition to the motion. The only opposition to the motion was based on the affidavit of an attorney and counselor, who therein states that he represented the plaintiff in retaining Messrs. Cantwell Moore, the attorneys of record, to bring this action, and that after issue was joined "he undertook to place the case on the calendar, and for that purpose received the papers from" the attorneys of record, and "thereupon instructed one of his clerks to place same on the calendar;" that at this time a fire broke out in his offices "and a great many papers were destroyed;" that owing to the fact that he was not the attorney of record no record of the case was kept in his office, "and owing to the fact that the papers were destroyed, as he has now learned, deponent had no means of knowing that the case was not put on the calendar, and was always under the impression that the case was put on the calendar, so were Cantwell Moore, for the reasons aforestated, and deponent had only learned of said fact when the papers on this motion were served, and as soon as he learned of said fact he placed the case on the calendar this day, and therefore asks this court to deny this motion;" that an amended complaint was not served for the reason that upon consultation it was not deemed necessary.
These facts, offered in explanation of the presumptive failure of the plaintiff to prosecute this action with due diligence, arising from the fact that junior issues have been reached on the regular call of the calendar, are wholly insufficient, and constitute no excuse whatsoever. No one having any responsible connection with the litigation presents an affidavit. There is nothing to show that the plaintiff intends or even desires to prosecute the action. The motion was returnable on the 25th day of May, 1909, nearly two and one-half years after the action was at issue, and it appears without controversy that during the interim no attention was given to the action until after the service of the motion papers for a dismissal of the complaint. We have repeatedly declared the rule that where the moving papers on such a motion show a prima facie case of failure to prosecute the action with due diligence, and a satisfactory excuse for such failure is not presented, the motion should be granted, notwithstanding the fact that the plaintiff has been stirred to activity by the notice of motion, for subsequent diligence is no excuse for past negligence. ( Zafarano v. Baird, 80 App. Div. 144; Anderson v. Hedden Sons Co., 116 id. 231; Mladinich v. Livingston, 112 id. 181; Fisher Malting Co. v. Brown, 92 id. 251; McGrath v. Murtha Schmohl Co., 128 id. 278.)
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, CLARKE, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.