Opinion
February 7, 1908.
Carlton B. Pierce, for the appellant.
Henry K. Davis, for the respondent.
This is an action to foreclose a mechanic's lien filed against real estate owned by the appellant. The notice of lien was filed on the 10th day of July, 1902, and the action was commenced on the twentieth day of September thereafter. Issue was joined as against appellant on the 29th day of October, 1902. The issues were not noticed for trial by either party until the 11th day of July, 1905, when they were duly noticed for trial by the plaintiff for the Special Term commencing on the first Monday of October thereafter, and appellant duly served cross-notice of trial for the same time. On the 9th day of February, 1906, the case appeared on the Special Term call calendar and the attorneys for the defendant had it set down for the twenty-third day of the same month. On the 26th day of February, 1906, the case appeared on the day calendar, both sides answered "ready," and it was marked "ready," but was not reached. On the 5th day of March, 1906, the case was reached on the day calendar. The attorneys for the defendant appeared, but no one appeared for the plaintiff, and the defendant not being desirous of taking a dismissal, the case was marked "off." The attorney for the plaintiff was notified of this fact within a day or two thereafter, but took no steps to have the case restored until the 16th day of October, 1907, more than seventeen months thereafter, when he gave the attorneys for the defendant notice of a motion to restore the cause to the day calendar. Thereupon, and upon proof of these facts and that causes of a later date of issue than this had been regularly reached and tried as early as the 11th day of October, 1906, and that the appellant was prepared to try the case when it was first reached on the day calendar, but that owing to the lapse of time since, it would be difficult, if not impossible, for it to collect the evidence which it then had, the appellant duly moved for a dismissal of the complaint. In opposition to the motion an affidavit of the attorney for the plaintiff on the motion to restore the cause to the day calendar, was read, showing, so far as material to the question under consideration, that the lien was bonded prior to the commencement of the action; that the sureties were made parties defendant and have defaulted in pleading, and that "through oversight counsel did not notice" that the case was on the day calendar for March 5, 1906, until after it was marked "off." Another affidavit read on behalf of plaintiff showed that issue was not joined as to one of the sureties until the 11th day of April, 1905, owing to plaintiff's inability to pay the cost of service by publication; that the motion to restore the cause to the day calendar was granted on the 22d day of October, 1907, and that the sureties "conveyed away the property offered in justification almost immediately after" they executed the bond, but that it is the intention of the plaintiff to "try the case without further delay." No excuse is offered by the plaintiff for his failure to bring the issues to trial before later issues were reached on the regular call of the calendar, and under the well-settled rule the appellant was entitled to an order dismissing the complaint on account of plaintiff's neglect to prosecute the action. (Code Civ. Proc. § 822; General Rules of Practice, rule 36; Zafarano v. Baird, 80 App. Div. 144; Anderson v. Hedden Sons Co., 116 id. 231; Seymour v. Lake Shore M.S.R. Co., 12 id. 300.) The fact that the case was noticed for trial and placed on the day calendar does not, in view of the fact that it was stricken from the day calendar and that the plaintiff failed to move to restore it, relieve it from the application of the rule with respect to dismissals for neglect to prosecute, which applies to suits in equity as well as to actions at law. ( James v. Shea, 28 Hun, 74; Calkin v. Beattie, 4 N.Y. Law Bul. 42.)
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion for the dismissal of the complaint with costs, granted, with ten dollars costs.
PATTERSON, P.J., McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.