Robert R. Tuttle, Respondent, v. Dubuque Fire and Marine Insurance Company of Dubuque, Iowa, Appellant

Robert R. Tuttle, Respondent, v. Dubuque Fire and Marine Insurance Company of Dubuque, Iowa, Appellant. Fourth Department, March 26, 1913. Practice — dismissal for failure to prosecute—unreasonable delay — ' inadequate excuse. Where a plaintiff has made no effort whatever to bring his cause to trial for more than four years, and younger issues have been tried in theii regular order, the delay is unreasonable, and an order permitting the plaintiff to procoed with the case on a- before a certain date should be reversed and a motion to dismiss the complaint absolutely granted. An affidavit by the plaintiff’s attorney to the effect that the plaintiff had suffered great financial reverses and had not been able to take sufficient time from his business to try the case is no excuse for the delay. McLennan, P. J., dissented, with opinion. Appeal by the defendant, the Dubuque Fire and Marine Insurance Company of Dubuque, Iowa, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 31st day of December, 1912, dismissing the plaintiff’s complaint for neglect to proceed with the action unless plaintiff procure from the referee a designation of the time on' or before April 1, 1913, and a place for hearing and notice the cause for trial before the referee before such date. The appeal is from that portion of the order which permits the plaintiff to proceed with the case on or before April 1, 1913, instead of dismissing the complaint absolutely. The action was begun August 5, 1907. The complaint was served September 5, 1907, the answer, November 12, 1907, and the plaintiff’s reply November 20, 1907. August 25, 1908, the order was made referring the cause to a referee to hear and determine. Neither party has since noticed the cause for trial or taken any other proceeding in the action. The complaint alleges the making of a contract on August 9, 1905, by which plaintiff was to act as manager for defendant in its fire insurance business in the States of New York and Pennsylvania, except the cities of New York and Philadelphia, with authority to appoint sub-agents in this territory and issue fire insurance policies, with headquarters at Syracuse, N. Y., plaintiff to receive for his services and expenses ten per cent of the net premiums received from the business in his territory and a contingent commission of ten per cent upon the profits of each year’s business in that territory. The first cause of action is for $5,280.01, balance of commissions on premiums alleged to have accrued to the plaintiff prior to August 1, 1907, and $1,135.99, balance of contingent commissions on profits of the business prior to that time. The second cause of action is for' ten per cent commissions on the business of the German National Insurance Company in the plaintiff’s territory, alleged to have been reinsured by defendant in November, 1906, said commissions amounting, as is alleged, to $13,032.09. The third cause of action is for various alleged violations of the contract by defendant, including the giving of notice to plaintiff March 6, 1907, to terminate the contract ninety days thereafter, and the amount claimed as damages is $90,128.34. Defendant’s answer alleges as to the first cause of action that all commissions earned by plaintiff had been fully paid; as to the second cause of action, that plaintiff had received his commissions on the business of the German National Insuranee Company in Ms territory for that company, he having written these policies as the agent of that company; as to the tMrd cause of action, a denial of the violations of the contract as alleged, and affirmative allegations of numerous violations of the contract by plaintiff. The answer also contains two counterclaims, the first for $3,587.58, balance alleged to be due defendant from plaintiff for agent’s balances m this territory, and the second for $120,000 for damages to defendant’s business caused by numerous alleged violations of the contract on the part of plaintiff. It appears from the moving affidavits that younger issues have been tried m their regular order at the Trial Term in Onondaga county, and that plaintiff has made no effort whatever to bring this cause to trial since the entry of the order of reference on August 25, 1908, and that the delay was not at the request of defendant or of any one on defendant’s behalf. The notice of motion was made on December sixteenth for a Special Term to be held at Syracuse December 28, 1912. The only affidavit read in opposition to the motion was made by one of plaintiff’s attorneys, and the only excuse for plaintiff’s failure to proceed with the case stated m this affidavit is that plamtiff some three or four years ago underwent great financial reverses while engaged m insurance business in the city of Syracuse and since that time has been residing in Washington, D. 0., engaged in the insurance business there in an effort to recoup his financial losses and pay off his debts, “but up until the present time has not been able to take from his business sufficient time to try the above entitled case.” The affiant further states, on information and belief, that plaintiff intends in good faith to try the case and will be in a financial situation to do so within the next six or seven months. William H. Harding, for the appellant. Stewart F. Hancock, for the respondent. [MAJORITY — Foote, J.:] Foote, J.: This cause has been at issue since November 20, 1907. Since August 25, 1908, when the order of reference was made, it could have been brought to trial, had plaintiff so desired, at any time on fourteen days’ notice. Section 822 of the Code of Civil Procedure provides: “Where the plaintiff unreasonably neglects to proceed in the action against the defendant, * * * the court may, in its discretion, upon the application of the defendant * - * dismiss the complaint as against the moving party or parties, and render judgment accordingly. ” And by rule 3G of the General Rules of Practice it is provided: “ Whenever an issue of fact in any action pending in any court has been joined, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant, at any túne after younger issues shall have been tried in their regular order, may move at Special Term for the dismissal of the complaint, with costs. “ If it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term,” By this Code section and rule it is clearly intended that if a plaintiff unreasonably neglects to bring his case to trial it shall be dismissed by the court on defendant’s application. A delay of four years is plainly unreasonable, unless such delay is satisfactorily excused. We find no sufficient excuse in this case. The affidavit in opposition to the motion is clearly insufficient to justify the delay, and cannot be accepted unless we are to disregard the statute and the rule. If there is any merit in plaintiff’s case he could have no difficulty in securing the financial assistance necessary to meet the expenses of the trial. We are not advised that he has ever made any effort to do so, nor does he make any affidavit himself that he intends to bring the case to trial. The authorities are numerous to the effect that delay on the part of the plaintiff for less time than here requires that the complaint should be dismissed unless a better excuse is furnished than in this case. In Kachel v. Stutz (137 App. Div. 199) issue was joined October 31, 1907, and the motion to dismiss was made in December, 1909. The excuse offered by the plaintiff for his delay was his financial condition; he had not been able to pay his attorneys. It was held that the delay was unreasonable and the excuse insufficient. (See, also, Seymour v. Lake Shore & Michigan Southern R. Co.. 12 App. Div. 300; Jacot v. Marks, 46 id. 531; Sil verman v. Baruth, 42 id. 21; Zafarano v. Baird, 80 id. 144; Anderson v. Hedden & Sons Co., 116 id. 231.) We think the correct rule is enunciated in these decisions, and that it should be followed in the present case. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. All concurred, except McLennan, P. J., who dissented in opinion. [DISSENT — McLennan, P. J. (dissenting):] McLennan, P. J. (dissenting): I dissent and vote for affirmance of the order. A motion of this kind is addressed to the discretion of the court at Special Term, and its determination should not be disturbed on appeal unless it is clear that the discretion of the court has been abused. Even though upon the motion papers the case was a proper one for the court to dismiss had it seen fit so to do, yet, in my opinion, there were sufficient grounds to warrant the court, in the exercise of its discretion, to deny the motion upon proper conditions, giving the plaintiff the right to bring the action on for hearing before the referee within a reasonable time. (Graham v. Ackley, 21 App. Div. 416.) In this case the defendant interposed a counterclaim exceeding the demand made in plaintiff’s complaint, and where the defendant in such a case takes no steps to bring the case on for hearing, that fact is entitled to some weight in relieving plaintiff’s default when a motion to dismiss for lack of prosecution is made. In such a case the absolute dismissal of the complaint is too harsh a punishment. (Heymer v. Arthur, 27 N. Y. St. Repr. 106.) In Ellsworth v. Brown (16 Hun, 1) it appeared that an order of reference had been granted, and after several hearings had been had, the referee refused to appoint another hearing unless his fees were paid. The case remained in this situation for over two years, and upon motion to dismiss for failure of plaintiff to prosecute the action, an order was made dismissing the action unless the plaintiff proceeded to another hearing within ninety days. Upon appeal to the General Term, Third Department, the court, while expressing the opinion that this was a very liberal condition," affirmed the order. In the present case no reason is made to appear why the defendant did not press the action before the referee for four and one-half years after the order of reference was made, although by its answer it has interposed a counterclaim against the plaintiff of over $123,000, and while it may be true that such fact is not necessarily controlling upon the court in determining the motion, still I think it is entitled to be given some weight, as it apparently was, in the consideration of the motion. Upon the undisputed facts the reversal of the order appealed from results in very great injustice to the plaintiff. It was stated in the affidavit presented to the Special Term on behalf of the plaintiff, and was not denied, that the plaintiff has a good and valid cause of action against the defendant for the sum of $109,576.43. By stipulation of the parties the matter was referred to ex-Judge Mebwin, who resides in Utica, N. Y., to hear, try and determine the same, and an order of reference was entered on the 25th day of August, 1908, and notice of entry served upon defendant’s attorney. Prom that time no steps were taken by either party to bring the case to trial before such referee. The attorneys for the respective parties reside in the same city, but during the entire time defendant’s attorney, neither orally or otherwise, even suggested to plaintiff’s attorney that he desired to have the trial proceed before the referee, and no complaint in that regard was made until the motion to dismiss the action was made. I am assuming that no sufficient excuse was made by the plaintiff for his failure to bring the case to trial before the referee, but such failure was acquiesced in by the defendant, at least by its silence, and under those circumstances plaintiff’s claim, amounting to over $109,000, a perfectly valid claim, so far as we may know, ought not to be wiped out. I think the court at Special Term properly exercised its discretion in refusing to dismiss the action except upon condition that the case be noticed for hearing before the referee not later than April 1, 1913. It is not suggested that the terms imposed by the order appealed from were not sufficiently severe, but it is urged that there should have been an absolute dismissal of the plaintiff’s complaint, and the majority of this court so holds. I think the decision as made works a great injustice to the plaintiff, depriving him of the right to enforce an alleged valid claim against the defendant, amounting to over $109,000. I, therefore, vote for affirmance of the order, with ten dollars costs and disbursements. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.