Mary Hoag, Appellant, v. The South Dover Marble Company, Respondent

Mary Hoag, Appellant, v. The South Dover Marble Company, Respondent. Second Department, March 3, 1911. Pleading — dismissal for failure to prosecute. The Appellate Division will not interfere with the discretion of the trial court in dismissing a complaint for unreasonable neglect to prosecute where it appears that since a judgment for the plaintiff was reversed in 1908 she took no steps in the action, made no motion to amend her pleading and junior issues have been placed upon the calendar and tried, and the only excuse for delay is that the plaintiff and members of her family have been ill. Appeal by the plaintiff, Mary Hoag, from an order of the County Court of Dutchess county, entered in the office of the clerk of said county on the 1st day of December, 1910, dismissing the complaint for unreasonable neglect to prosecute. Charles Morschauser [George Card with him on the brief], for the appellant. Louis Cohn [Frank V. Johnson with him on the brief], for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The case has been before the court since 1906. A judgment in favor of the plaintiff was reversed in 1908 (192 N. Y. 412; 193 id. 646), and since that time no move has been made. The judgment of reversal held in effect that the plaintiff had no cause of action as the pleadings then stood, and no motion has been made to amend the pleadings. Junior issues have been placed upon the calendar, tried and disposed of since the reversal, and the only excuse for delay is that made by the plaintiff, that she and her mother and other members of the family have been ill. This clearly did not prevent her attorney from taking the necessary steps to amend the complaint, nor did it prevent making an application to read the plaintiff’s testimony on a former trial, or to take her testimony at her own home. The learned court below has granted the defendant’s motion to dismiss the complaint, and we are of the opinion that there is no reason for interfering with the discretion thus exercised. The order appealed from should be affirmed,- with ten dollars costs and disbursements. Jenks, P. J., Hirsohberg, Bueb, Woodward and Rich, JJ., concurred. Order of the County Court of Dutchess county affirmed, with ten dollars costs and disbursements.