Opinion
October 23, 1908.
George W. Smyth, for the appellant.
Thomas J. O'Neill, for the respondent.
This action was commenced on the 15th of November, 1906, and issue was joined the 12th of December, 1906. The case was never placed on the calendar and issues of a later date have been tried. The action is to recover $10,000 damages caused by the death of the plaintiff's intestate. The only excuse offered was that the plaintiff's attorney found an entry on his register dated August 29, 1906, that his managing clerk had directed his assistant not to place the case on the calendar and the matter was not called to his attention. No affidavit of the plaintiff was presented and nothing to show that this direction was not the result of a determination by the plaintiff to abandon the action or that the delay was not the voluntary act of the plaintiff.
The defendant having brought itself within the provisions of the Code of Civil Procedure (§ 822) and the General Rules of Practice (Rule 36) which justify the court in dismissing the complaint for failure to prosecute where younger issues have been tried, and no excuse having been offered for the delay, the motion should have been granted.
The order is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
PATTERSON, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.