Frances M. McCardell, Respondent, v. Metropolitan Street Railway Company, Appellant

Frances M. McCardell, Respondent, v. Metropolitan Street Railway Company, Appellant. Second Department, February 28, 1908. Practice — dismissal of complaint for failure'to prosecute. The complaint in an action to recover for personal injuries should be dismissed for failure to prosecute when it is shown that although the cause of action arose in 1899, and issue was joined in 1902,-the case was not noticed for trial or note of issue filed' or any proceedings since taken, although issues three years younger had been tried in the meantime. ‘Under the circumstances, it- is no excuse for the plaintiff’s attorney to say that -. "owing, to the fact that his clerk who had charge of the matter went on a spree • in 1902 and never returned, he did not know of the pendency of the cause in his office until the motion to dismiss. Rich, J., dissented, with opinion. Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of. Westchester on the 21st day of' June,’ 1907, denying the defendant’s motion to dismiss the complaint herein for failure to prosecute. ' ■ ■ Bayard II. Ames [ Walter Henry Wood and Henry A: Robinson with him on the brief], for the appellant. J. Quintus Oohen, for the respondent. • [MAJORITY — HooicEr, J.:] HooicEr, J.: The action is for personal injuries. The cause of action arose on September 1, 1899 ; summons was served on August 25, 1902, and issue was joined on October 14, 1902. Subsequent thereto no further steps were taken by the plaintiff. The case was never noticed for trial and note of issue was never filed. This is an appeal by the defendant from an order refusing to dismiss the complaint for lack of prosecution. Issues three years younger, namely, of August, 1905, had been tried. The plaintiff’s attorney seeks to excuse his neglect by. showing that a clerk in his office, who had charge of the matter, went on a protracted spree after the commencement of' the action, and never returned to the attorney’s office; that the attorney never knew of the pendency of this case in his office until the service of the motion papers. We cannot understand how this case could be in the plaintiff’s attorney’s office from 1902 until the making of this motion without his having been aware of the commencement of the action. If the clerk went on the spree at about the time of the commencement of the action and has never returned, and the plaintiff’s attorney has- never discovered the presence of this case in his office, his neglect of his client’s interest is exceedingly gross; it seems impossible that the case could have been in his office for between-four and five years without his having discovered the fact. It is also incomprehensible that if the plaintiff had any case at all she would not have conferred with her lawyer about it during the time that intervened between the commencement of the suit and the making of this motion. The facts presented by' this* record show a case of inexcusable neglect, if evér one was made out. The order should .be reversed, with ten dollars costs - and disbursements, and the motion granted, with costs. Jenks, G-aynor and Miller, JJ., concurred; Rich, J., read for affirmance. [DISSENT — Rich, J. (dissenting):] Rich, J. (dissenting): I dissent. It appears that younger-issues of the same character have been reached in their regular order upon, the calendar of the court and tried and disposed of. Plaintiff excuses the failure to prosecute by showing that, at the time the action was commenced, her counsel relied upon a young man in his office who had charge of all papers in connection with the case, but who left the employment at about that time, and never returned-, without giving counsel any information of the action or even that it-had been instituted, -and he never had anv knowledge-or information in reference to the pending case until served with the papers in the motion to dismiss. I think, in view of the fact that counsel had no knowledge of the action, that plaintiff ought not. to be charged with neglect, and the order ought, therefore, to be affirmed. Order reversed, with ten dollars costs and. disbursements, and motion granted, with costs.