Opinion
March 10, 1943.
Appeal from Supreme Court.
The action is brought to recover damages for personal injuries and was commenced on December 23, 1941. Issue was joined on February 25, 1942. Plaintiff failed to notice the cause for the May Trial Term of Supreme Court and defendant thereupon moved to dismiss for failure to prosecute. A prior action was brought in March, 1939, for the same relief. That action was dismissed on December 13, 1941, for failure to prosecute. Unquestionably, plaintiff has been guilty of delay in the prosecution of his alleged claim; however, the court is of the opinion that he should have one more opportunity to try his cause if he is so advised. Order and judgment reversed on the facts, without costs, and motion to dismiss the complaint denied, without costs, on condition, however, that plaintiff shall notice the cause for trial and be ready to try the same at the next trial term of the court to be held in Chemung county. Upon plaintiff's failure to comply with these conditions, the order and judgment appealed from are affirmed, with costs. All concur.