Janet W. Goldman, Respondent, v. New York Central Railroad Company, Appellant

Janet W. Goldman, Respondent, v. New York Central Railroad Company, Appellant. [MAJORITY] In an action to recover damages for personal injuries alleged to have been suffered by "plaintiff on July 4, 1927, when she fell into a hole in defendant’s station platform at Beacon, New York, defendant appeals from an order granting its motion to dismiss for failure to prosecute, unless plaintiff he 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.