Opinion
December, 1906.
William C. Wolf, for appellant.
Henry A. Robinson (Bayard H. Ames, of counsel), for respondent.
This action was begun in 1901 to recover damages for injuries received by plaintiff through the alleged negligence of the defendant. The case was tried in April, 1903, and a verdict rendered in favor of the plaintiff for the sum of $1,000. In June, 1904, the Appellate Term reversed the judgment and ordered a new trial for reasons not necessarily fatal to plaintiff's recovery upon another trial. 86 N.Y.S. 241. Upon a motion made by defendant an order was entered on October 3, 1906, dismissing the complaint with costs, and from that order this appeal comes up. In this case great injustice may be done the plaintiff if this order is sustained. The Statute of Limitations has run against her cause of action. From the magnitude of the former judgment we may assume there is merit in her claim and we think that, under all the circumstances shown herein, the dismissal of the complaint is too great a punishment for the neglect charged in not bringing on the case for trial at an earlier date.
The order appealed from will be affirmed unless the plaintiff stipulates, within ten days, to try the case when reached, and pay the sum of ten dollars, and defendant's disbursements on this appeal; in which event the order appealed from will be reversed, without costs, and the order of Mr. Justice Conlan restoring the case to the calendar will be reinstated, the date of trial to be fixed by the lower court.
Present: GILDERSLEEVE, FITZGERALD and DAVIS, JJ.
Order affirmed, unless plaintiff stipulates, within ten days, to try the case when reached, and pay ten dollars costs and defendant's disbursements on this appeal; in which event the order will be reversed, without costs, and order of Justice Conlan restoring case to calendar will be reinstated and date of trial will be fixed by lower court.