December 7, 1906.
Louis Cohn, for the appellant.
William S. Bennett, for the respondent.
The motion should have been granted unconditionally. The action is to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. Issue was joined on the 31st day of August, 1903. At the time the motion was made the case was not upon the calendar and had never been placed upon the calendar, and issues of a later date in actions of the same nature, not preferred, had been duly reached and tried. No affidavit was presented in opposition to the motion excusing the neglect of the plaintiff to notice the case for trial, file a note of issue and move it for trial. The court denied the motion upon condition that the plaintiff pay ten dollars costs and notice the case and file a note of issue for the October term, but in the event of his failure so to do, the order provided that the motion should be granted, with ten dollars costs.
The learned counsel for the plaintiff states in his points that upon the case being placed upon the October term it will be reached for trial as soon as if it had been upon the old calendar, barring the few days toward the end of the June term, when it might have been reached if then on the calendar, and it may be that this is the theory upon which the court imposed the conditions instead of granting the motion unconditionally. Such, however, is not the practice in this department. The cases on the old calendar stood at the head of the October calendar, and even if the plaintiff complied with the conditions of the order, this case could not be reached until after the issues that were upon the old calendar are disposed of. There is, therefore, nothing in the suggestion to which reference has been made which can either operate as an excuse for the plaintiff's failure to bring the issue to trial or that shows that the trial of the issue has not been delayed to the prejudice of the defendant. Under rule 36 of the General Rules of Practice and decisions of this court ( Zafarano v. Baird, 80 App. Div. 144; Mladinich v. Livingston, 112 id. 181; Seymour v. Lake Shore M.S.R. Co., 12 id. 300) it was the duty of the Special Term, on the undisputed facts, to dismiss the complaint.
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
PATTERSON, INGRAHAM, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.