
    Mary R. Burns, Respondent, v. William Meister, Appellant.
    Second Department,
    December 2, 1910.
    Practice — motion for leaye to serve complaint —laches.
    Where a plaintiff whose' complaint has been returned for lack of timely service . delays over five-years before moving for leave to serve a complaint and has taken no other proceedings during that time,-she is under" the burden of giving' a reasonable excuse for.the delay. ■ . .
    Under such circumstances leave to serve a complaint should be denied where one of the important witnesses for the defendant has died and two others cannot be found', even though the-plaintiff was Unable to find out from her former ; attorney what disposition had-been made'of'the case, for. the court out of., sympathy for one litigant cannot wdrlt inj us.ticé to' the other.
    Appeal by the defendant, William .Meister, from two orders of ■ tlie Supreme Court,'made at the Kings County .Special Term and-, entered in the office of the clerk of the county, of Kings onthe2Íst day of June, 1910, one of which granted the plaintiff leave to serve a complaint, and the other denied the defendant’s.motion to dismiss the same. • • -
    
      Andrew G. Loomis, for the appéllant..
    
      A. 0. Cass, for the respondent.
   Jknks, J.:

- A" summons was served on April 19,1904. .The defendant, within 20' days thereafter, appeared and demanded a copy of the'complaint. The attorney for défendant deposes that in February, 1905, an unverified complaint' was served, which was' duly returned because it was not served in time, arid that no other proceedings were had herein until June, 1910, when plaintiff .moved for leave to serve a complaint. The burden of proof was upon the plaintiff to satisfy the court that, there, was a reasonable excuse for this delay. . (Martin v. McCurdy, 120 App. Div. 665.)- Ther'e.was .no reason-.' able excuse given. The plaintiff deposes that she could never find out from her former attorney until recently what -was done with, the case ; that she went.to see him many times, when he told her that he was waiting for a decision in the Court of Appeals,” arid she asserts that the delay was not through her- fault. But the difficulty is that this is not a controversy between her and her attorney over this delay, but between her and the other party to the action. ' The action is by servant against master to recover for neg-' ligence whereby the cylinder of a boiler burst.. The defendant ' deposes that his former employee, Hager, whose work was about the boiler, and who was thoroughly familiar with its condition at the time of the accident, died 14 months ago; that he cannot now find Bachman, another employee, who was present at the time of the accident and who ivas familiar with the facts, although he has made diligent efforts to find him, which are detailed in his affidavit; and that the same condition is true as to his former foreman, Eisenhuber, who was fully acquainted with the condition of the cylinder and came immediately upon the scene of the accident, and who was in his employ within a year. And there are presented other reasons more or less cogent why the prosecution of this action, after this delay of years, would be a hardship upon the deféndant. It is the plaintiff’s misfortune that her case has grown so stale, but it would be the misfortune of the defendant if, after this lapse of time for which he is in no part responsible, he were brought into court deprived of several of the witneses upon whom he relied for exculpation. The courts cannot, out of sympathy for one litigant, work injustice to the other.

The orders are reversed, with $10 costs and disbursements ; the motion granting leave to serve a complaint is denied, with costs, and the cross-motion for a dismissal of the complaint is granted, with costs. '

Hirsohberg, P. J., Woodward, Thomas and Bich, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements, ánd motion granting leave to serve a complaint denied, with costs, and the cross-motion for a dismissal of the complaint granted, with costs.  