Michael McGrath, as Administrator, etc., of John McGrath, Deceased, Respondent, v. Murtha & Schmohl Company, Appellant

Michael McGrath, as Administrator, etc., of John McGrath, Deceased, Respondent, v. Murtha & Schmohl Company, Appellant. First Department, October 23, 1908. Action — dismissal for failure to prosecute — failure to excuse delay. Where an action to recover for negligence causing death has never been placed on the calendar, and junior issues have been tried, the complaint should be dismissed' for failure to' prosecute where the only excuse of the plaintiff’s attorney is that his managing clerk directed his assistant not to place the cause on the calendar and the matter was not called to the attorney’s attention -and there is nothing to show that the action was not abandoned or that the delay was not the voluntary act of the plaintiff. Appeal by the defendant, the Murtha & Schmohl Company, from an order of the Supreme Court, made at the New York Special Term and entered in tbe office of the clerk of the. county of New York on tbe 7th day of August, 1908, denying tbe defendant’s motion to dismiss tbe complaint for failure to prosecute tbe action. George W. Smyth, for the appellant. Thomas J. O’Neill, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: This.action was commenced on the l5th of November, 1906, and issue was joined tbe 12th of December, 1906. The case was never placed on the calendar and issues of a later date have been tried. The action is to recover $10,000 damages caused by tbe death of the plaintiff’s intestate. Tbe only excuse offered was that tbe plaintiff’s attorney found an entry on bis register dated August 29,1906, that bis managing clerk had directed his assistant not to place tbe case on the calendar and the matter was not called to bis attention. No affidavit of tbe plaintiff was presented and nothing to show that this direction was not the result of a determination' by the plaintiff to abandon tbe action or that tbe delay was not tbe voluntary act of the plaintiff. The defendant having brought itself within tbe provisions of the Code of Civil Procedure (§ 822) and the General Rules of Practice (Rule 36) which justify the court in dismissing the complaint for failure to prosecute where younger issues have been tried, and ho excuse having been offered for the delay, the motion should have been granted. The order is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.