Luca Crisenza, Respondent, v. Ellen S. Auchmuty, Appellant

Luca Crisenza, Respondent, v. Ellen S. Auchmuty, Appellant. First Department, October 25, 1907. Attorney and client — settlement by client — dismissal for failure to prosecute. When a defendant’s answer apprises the'.plaintiff’s attorney that the action has been settled and compromised by his client, defendant’s motion to dismiss the complaint for failure to prosecute for three years should be granted; the' case should not be kept on the calendar and treated as a live issue solely for the attorney’s protection, as his rights accrued when he had notice of the settlement. . Appeal by the defendant, Ellén S. Anchmuty, 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- 2d day of August, ■ 1907, denying the defendant’s motion to dismiss the complaint on the ground that the plaintiff has shown unreasonable" neglect in prosecuting the action. Harold S. Recknagel, for the appellant. Nelson L. Keach, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The action was begun by the service of-a summons .on'January 15, 1904, and the issue was joined on March 2, 1904. The case has never been noticed for trial and junior -issues having been reached and tried in their regular order, defendant moved to dismiss the complaint for lack of prosecution, as provided for by section 822 of the Code of Civil Procedure and rule 36 of the General Rules of Practice. The only excuse offered by the plaintiff’s attorney is that his client had settled and compromised the claim, and indeed the answer, verified on the 2d day of March, 1904, alleges compromise of the claim and the execution and delivery by the defendant of a general release. . It is suggested that in spite of the fact that the plaintiff’s attorney has taken no steps in the action since the joinder of issue, and made no move for the purpose of enforcing, his lien, the case ought to 'be kept upon the calendar and treated as a live ■ issue,- solely for the attorney’s protection. There seems to be no good reason for this. The attorney’s rights, if he had ány, accrued upon the compromise and settlement of which he was advised by the answer'served. The facts do not differ essentially from those passed upon by the learned Appellate Division in the second department in Russo v. Darmstadt (116 App. Div. 887), and for the reasons there, stated the. order appealed from should be reversed, with ten dollars costs' and disbursements, and the motion-, granted, with ten dollars costs.. Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Houghton, JJ. Order reversed, with ten- dollars costs and. disbursements^ and motion grantéd,, with ten dollars'costs.