Samuel H. Goldman v. New York Central Railroad Company

In an action to recover damages for loss of services and for expenses, defendant appeals from an order granting its motion to dismiss for failure to prosecute, unless plaintiff be ready to dispose of the action when reached for trial in the regular course. Order modified on the law and the facts by striking therefrom the words “unless the plaintiff be ready to dispose of the action when reached for trial in the regular course.” As so modified, the order is affirmed, with $10 costs and disbursements to appellant. In our opinion, the motion to dismiss the complaint for lack of prosecution should have been granted without condition. Plaintiff made no attempt to excuse the unreasonable delay of seventeen years. The circumstance that the note of issue was served shortly before the service of the motion to dismiss was not sufficient to warrant a granting of the motion on conditions which were tantamount to a denial of the motion. (Seymour v. Lake Shore & Mich. So. Ry. Co., 12 App. Div. 300.) Johnston, Acting P. J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.