Opinion
March 3, 1911.
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.
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., HIRSCHBERG, BURR, WOODWARD and RICH, JJ., concurred.
Order of the County Court of Dutchess county affirmed, with ten dollars costs and disbursements.