Grace L. Finn, Respondent, v. Scottish Union and National Insurance Company, Appellant

Grace L. Finn, Respondent, v. Scottish Union and National Insurance Company, Appellant. Second Department, March 31, 1910. Practice — dismissal for failure to prosecute — appeal — review of discretionary order. Where a plaintiff unreasonably neglects to prosecute an action, the court, on motion of the defendant, may in its discretion dismiss the complaint. Proof that younger issues have, been tried in their regular order makes a prima facie case of unreasonable neglect and casts upon the plaintiff the burden of showing that the neglect was not unreasonable. Action to recover on a Are insurance policy dismissed for failure-to prosecute. The discretion .of the Special Term in refusing to dismiss a cause for failure to prosecute is reviewable by the Appellate Division. Rich, J., dissented. ■ Appeal by the defendant, the Scottish Union and National Insurance Company, from an order of the Supreme • Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 10th day of January, 1910, denying the defendant’s motion to dismiss the complaint for failure to prosecute. Donald McLean [David Asch with him on the brief], for the appellant: Joseph U. San [Max D. Steuer with him on the brief], for the respondent. [MAJORITY — Burr, J.:] Burr, J.: When the plaintiff unreasonably neglects to proceed in the action the court-may in its discretion,,on motion of the defendant, dismiss - the complaint and render judgment accordingly. (Code Civ. Proc. § 822.) Proof that younger issues have been tried in their regular order on the calendar makes out a prima facie case of unreasonable neglect. (General Rules of Practice, rule 36 ; Fisher Malting Co. v. Brown, 92 App. Div. 251.) While the court may relieve a plaintiff from the consequences of his neglect to bring an action'to trial, before it. is authorized to exercise its discretion in his behalf it must be made to appear that such neglect has not been unreasonable. (Regan v. Milliken Bros., 123 App. Div. 72.) The history of this case discloses a willful and persistent , purpose on the part of the plaintiff to delay the trial of the issues, in the hope, doubtless, that the witnesses necessary to establish the defense may be scattered or lost track of, and the obtaining of documentary evidence made more difficult. The action was brought October 21, 1901, to recover for an alleged loss of property covered by a policy of insurance issued by the defendant. The tire occurred October 22, 1900.The action was brought just one day before the short Statute of Limitations would have run. Although issue was joined in January, 1902, the case was not put upon the calendar until April, 1903. Just about that time younger issues were about to be reached on the general calendar, and the purpose doubtless was to avoid a motion at that time to dismiss for want of prosecution. A new calendar was made up in June, 1903, but the case was not placed upon it. It did not appear upon the calendar again until sometime in 1904. In April, 1905, it was reached on the regular call and, there being no appearance for the plaintiff, the complaint was dismissed and judgment of dismissal entered. A motion was thereafter made ' to open the default, the excuse offered being neglect on the part of the then attorney for the plaintiff to be watchful of the calendar and failure upon his part to notice that the case was likely to lie called. This motion was granted on payment of thirty dollars costs. Even then the case was not restored to the calendar, and in May, 1906, a motion was made to dismiss for want of prosecution. Just why that motion was not grantéd we are unable to determine. From the order, which is made a part of the record on this appeal, it would appear that no answering affidavit on the part of the plaintiff was submitted. In opposition to this motion an affidavit of plaintiff’s attorney, verified at about that time/ was read, but it does not appear that such affidavit was then . pre- . sented to the court; it was .not recited in the order entered on that motion and had not been tiled. Thereafter, and in October, 1906, the case was again reached, on the calendar and marked off,, there being no appearance on the part of the plaintiff or her attorney. At' about that time plaintiff claims to have employed new counsel, but, although, a consent to substitution was then given, no order was entered upon it until January of this year, after the present motion to dismiss had been made. Plaintiff herself .presents, no affidavit 'in excuse for her conduct, but in an affidavit verified by her husband it-is sought to lay the blame oh the attorneys in the case and to plead ignorance of the course of judicial proceedings. ’ The excuse is too flimsy. Certainly as early as April, 1905, plaintiff was changeable with actual notice of the negligent conduct of her attorney, for she claims- at that time to have paid the terms imposed as a condition of opening the default previously taken, and she must at that time have known that the case could be speedily tried. . Notwithstanding this, -she permits the care of the action to remain in the hands of her former attorney for two years with apparently not the, slightest effort on her part to ascertain what was being done in the matter, and, after she had employed new counsel, no effort was m'^de to bring the case to trial or to ascertain, why some proceedings were not taken in it until after this motion to dismiss had been made. The present' show of zeal, coupled with an .effort to put the case on the succeeding calendar of the court comes too late. The want of good faith' is too apparent. • (Seymour v. Lake Shore & Michigan Southern R. Co., 12 App. Div. 300; Zafarano v. Baird, 80 id. 144 ; McMann v. Brown, 92 id. 249.) The discretion exercised by this court at its Special Term is r.eviewable' by the appellate branch thereof when, as in this case, it seems to us to have been unwisely exercised. (Silverman v. Baruth, 42 App. Div. 21.) The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to dismiss granted, with ten dollars costs. . Jenks, Thomas and Carr, JJ., concurred ; Rich, -J., dissented. Order reversed, with ten dollars costs and disbursements, and motion to dismiss granted, with ten dollar's costs. -