Opinion
No. 262.
May 6, 1929.
Appeal from the District Court of the United States for the Southern District of New York.
Suit by Edward Russell against the Texas Transport Terminal Company. From an order dismissing the complaint for delay in prosecution, plaintiff appeals. Reversed, with leave to again move for dismissal.
Suit was brought on March 8, 1921, under section 33 of the Jones Act (41 Stat. 1007; 46 USCA § 688) to recover for personal injuries sustained by the plaintiff on November 29, 1920, while serving as an assistant engineer upon defendant's steamship. Issue was joined by service of an answer, and on May 11, 1921, the case was noticed for trial. It was not reached on the trial calendar until April, 1925, and at that time was marked off. An affidavit by plaintiff's present attorney, who did not then represent him, states that this was done pending negotiations of settlement. From this affidavit, it further appears that for three years plaintiff heard nothing about his case. He was unable to communicate with his attorney, because each had lost the other's address. Plaintiff resided in Texas, and was not financially able to make a journey to New York. In the summer of 1928 he conferred with his present attorney, and on August 28, 1928, Mr. Axtell was substituted as his attorney of record. On September 19, 1928, notice of a motion to restore the case to the trial calendar was served upon defendant, who thereupon served a counter motion to dismiss the complaint for want of prosecution. Defendant's motion was granted, resulting in the order which gives rise to the present appeal.
Silas B. Axtell, of New York City (Benjamin I. Sperling, of New York City, of counsel), for appellant.
James A. Hatch and Edgar G. Wandless, both of New York City (John C. Donovan, of New York City, of counsel), for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
The defendant's brief makes a very different case from that above stated. It asserts that no negotiations for settlement were pending in April, 1925, but that the case was then stricken from the trial calendar because the plaintiff was not ready to proceed; that the case was again reached for trial in September, 1927, and was again marked off because the plaintiff failed to answer; and that on each occasion the defendant had gone to the expense of being ready for trial. Were such facts embodied in the record before us, it would be difficult to find any abuse of discretion in an order which dismissed the suit for neglect to prosecute it. But we are obliged to take the record as it is.
The state practice, to which the federal courts conform, is governed by section 181 of the Civil Practice Act of New York and rule 156 of the Rules of Civil Practice. Dismissal rests in the discretion of the trial court, but such an order, like other discretionary orders, may be reversed by an appellate court, if the record discloses that discretion was improperly exercised. Graham v. Ackley, 21 App. Div. 416, 47 N.Y.S. 562; Silverman v. Baruth, 42 App. Div. 21, 58 N.Y.S. 663. The defendant made a prima facie case for dismissal, and the propriety of the order depends upon whether the plaintiff has offered a sufficient excuse for delay. He shows that, when the case was reached for trial in April, 1925, it was marked off pending negotiations for settlement. How long such negotiations continued thereafter does not appear; nor is there anything to indicate that the defendant has suffered any detriment in needlessly preparing for trial, or in the loss of witnesses by reason of the delay. Depositions of two of defendant's witnesses were filed with the clerk of the District Court soon after the case was at issue. The plaintiff lived in a distant state. He showed his futile efforts to communicate with his former attorney and his pecuniary inability to come to New York personally to investigate the delay. In the summer of 1928 his present attorney was substituted, and shortly thereafter the plaintiff moved for a trial, before the defendant moved to dismiss. While this fact alone does not preclude a dismissal (Seymour v. Lake Shore M.S.R. Co., 12 App. Div. 300, 42 N.Y.S. 92; Mannion v. Steffens [Sup.] 115 N.Y.S. 1087; Robertson v. Smith, 200 App. Div. 653, 193 N.Y.S. 549), it may be considered in connection with all other pertinent circumstances in determining whether the motion to dismiss should be granted (Mladinich v. Livingston, 112 App. Div. 181, 98 N.Y.S. 46; U.S. Fidelity Guaranty Co. v. Whitman, 138 App. Div. 275, 122 N.Y.S. 882). On this record, the plaintiff's delay does not appear so unreasonable as to justify the order of dismissal. But we do not say the same conclusion would necessarily be reached, if the additional facts stated in defendant's brief were established.
The order is reversed, but leave is given to the defendant to move again, if it so wishes, before the District Court for dismissal of the complaint, upon papers which shall show what negotiations, if any, for settlement occurred in 1925, how long they continued, whether the cause was again placed upon the trial calendar, and what disposition was made of it, and any other pertinent facts affecting the prosecution of the action.