David Harris, Respondent, v. Louis Reichenbach and Emil Reichenbach, Defendants, Impleaded with Louis Reichenbach, Jr., Appellant

David Harris, Respondent, v. Louis Reichenbach and Emil Reichenbach, Defendants, Impleaded with Louis Reichenbach, Jr., Appellant. First Department, April 12, 1912. Practice — dismissal of complaint for failure to proceed. Where an action was commenced February 17,1909, and issue joined April-sixteenth of the same year, and the plaintiff has never noticed the cause for trial and issues of a much la.ter date have been disposed of, the fact that an order for plaintiff’s examination before trial, granted January 11, 1910, is still outstanding, is no reason why a motion to dismiss the complaint for failure to proceed should not be granted. Appeal by the defendant, Louis Reichenbach, Jr., from an order of" the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of January, 1912, as resettled by an order bearing date the 9th day .of February, 1912, and entered in said clerk’s office, denying a motion to dismiss the complaint herein for failure to prosecute the action. David W. Kahn, for the appellant. No appearance for the respondent. [MAJORITY — Dowling, J.:] Dowling, J.: The action was commenced February IT, 1909, and issue was joined April 26; 1909. Plaintiff has never noticed the cause for trial or. filed any note of issue. Defendant shows that issues of a much later date have been reached for trial and disposed of. The isole excuse offered by plaintiff for his failure to move the cause for trial is that an order for his examination before trial was granted January 11/1910; that his testimony thereunder has never been ¡concluded; that he now is in Florida, where he has sojourned for some time, and that defendant’s attorneys have refused to fix a definite time for his final examination. Defendant claims that plaintiff defaulted on his examination. However that fact may be, plaintiff has failed to furnish any valid excuse for his failure to promptly put the cause upon the calendar for trial. The fact that an order for his examination was outstanding was no reason why he should not have proceeded with his action. The order appealed from will he reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint granted, with ten dollars costs. Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.