
    The United States Fidelity and Guaranty Company, Appellant, v. Nathaniel Whitman and Others, Respondents.
    First Department,
    May 6, 1910.
    Practice — dismissal for failure to prosecute denied — terms.
    An action by a surety against his principal will not be dismissed for failure to prosecute where the motion to dismiss is made shortly after the note of issue was filed and the notice of trial served, although there was a delay of four years in filing the note of issue. But the plaintiff will be required to pay the taxable costs to date, with ten dollars costs and the disbursements of the appeal, and to stipulate to try the cause when reached without further delay.
    Appeal by the plaintiff, The United States Fidelity and Guaranty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of March, 1910.
    
      
      Sumner Bowman, for the appellant.
    
      Martin J. Keogh, Jr., for the. respondents.
   McLaughlin, J.:

This appeal is from an order dismissing the complaint, with costs, for want of prosecution under section 822 of the Code of Civil Procedure and rule 36 of the General Rules of Practice.

The action was brought by the surety upon a bond given to the sheriff of the county of New York to indemnify him for seizing at the instance of the defendants (plaintiffs in another action) by writ of replevin certain personal property thereafter sold and the proceeds derived from the sale turned over to them. The owners of the property seized thereafter brought an action against the sheriff and recovered a judgment for the value of the same, which judgment was affirmed by. this. court and its determination affirmed by the Court of Appeals. (See Einstein v. Dunn, 61 App. Div. 195; 171 N. Y. 648.) The judgment was thereafter paid by the surety on the sheriff’s bond ■—■ the plaintiff in this action. . On the 13th of February, 1906, this action was commenced by the service of the summons to recover the amount paid. The complaint was-served on the 20th of March, 1906, and an amended answer on the fifteenth of December following, and plaintiff was given by stipulation until the 4th of April, 1908, to serve an amended complaint. On the 19th of Movember, 1908, the present attorney was substituted for the plaintiff, and he, on the 24th of January, 1910, filed a. note of issue and served notice of trial for the following February term. The notice was immediately returned, and shortly thereafter a motion was made to dismiss the action for want of prosecution. The motion resulted in the order appealed from.

The amount paid by the plaintiff as surety upon the sheriff’s bond was something like $8,000, and while its delay in bringing the action to trial is not very satisfactorily explained, nevertheless, in view of the fact that the note of issue had been filed and the case noticed for trial before the motion was made to dismiss — taken in connection with the otlier facts and circumstances — we think the action-ought not to have been dismissed, and an opportunity should be afforded to the plaintiff to try the same. This, however, should only be upon condition that the plaintiff pay to the defendant the taxable costs to date,-and in addition ten dollars costs and disbursements of this appeal, and stipulate to try the case, when reached, without further delay. (Mladinich v. Livingston, 112 App. Div. 181; Fisher Malting Co. v. Brown, 92 id. 251.) .

If such" conditions be complied with, then the order appealed from is reversed and the motion to dismiss denied ; otherwise the order is affirmed, with ten dollars costs and disbursements.

•Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed and motion denied on conditions stated in order; if such conditions are not complied with, order affirmed, with ten dollars costs and disbursements. Settle order on notice.  