
    The People of the State of New York ex rel. George L. Arfken, Respondent, v. Bernard J. York and Others, Commissioners of Police, Constituting the Board of Police of The City of New York, Appellants.
    
      Dismissal for a failure to prosecute — when proper.
    
    Where issue is joined upon an alternative writ of mandamus and the case is placed upon the calendar, if, upon a motion made by the respondent to dismiss the proceedings for-lack of prosecution, it appears that younger issues upon the calendar have been tried in their regular order and no excuse is offered for the delay on the part of the relator in bringing the issue to trial, the respondent, under section 833 of the Code of Civil Procedure and rule 86 of the General Rules of Practice, is entitled to have his motion granted- and the order state that the proceedings were dismissed for a failure to prosecute.
    Appeal by the defendants, Bernard J. York and others, commissioners of police,, constituting the board of police of the city of New York, from an order of tlie 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 6tli day of March, 1905, dismissing the above-entitled proceeding, and also from an order entered in said clerk's office on the 28th day of March, 1905, denying the defendants’ motion to resettle the foregoing order by inserting therein a recital that the proceeding was dismissed for failure of prosecution.
    
      Terence Farley, for the appellants.
    
      Abram I. Elkus, for the respondent.
   McLaughlin, J.:

This appeal is from an order denying, a. motion to dismiss the proceeding for want of prosecution, and also from an order denying a motion to resettle the same. The motion to dismiss was granted not for want of prosecution, but for the reasons given in the opinion * * * in People ex rel. Daly v. York (66 App. Div. 453).” The defendants thereupon moved to resettle the order by striking out the words quoted and inserting in place thereof words to the effect that the proceeding was dismissed for want of prosecution. This motion was denied and an appeal has been taken from both orders.

I am of the opinion that the orders should be reversed. The proceeding was instituted on the 14th of June, 1900, for the purpose of compelling the police commissioners to pay the relator, a member of the police force of the city of New York then doing detective work, the salary of a detective sergeant. An alternative writ of mandamus was obtained and issue joined by filing a return on the 20th of August, 1900.

Younger issues.upon the calendar have been tried in their regular order and no excuse was offered for the delay on the part of the. relator. Therefore, under section 822 of the Code of Civil Procedure and rule 36 of the General Rules of Practice the defendants were entitled to have the proceeding dismissed. The relator had failed to bring the proceeding to trial in accordance with the course and practice of the court and his failure to do so was unreasonable. Defendants’ motion should, therefore, have been granted. (Silver man v. Baruth, 42 App. Div. 21; Zafarano v. Baird, 80 id. 144; McMann v. Brown, 92 id. 249.)

The counsel for the relator does not contend but what the proceeding should have been dismissed, but he claims it was proper to insert in the order that it was dismissed for the reasons given in the Opinion in the Daly case. In that case the appeal was from a final order'dismissing an alternative writ of mandamus and from judgment entered thereon. The proceeding had been heard upon the merits and there was inserted in the order of affirmance the words “ without prejudice to the right of the relator to sue.” These words were inserted, as stated .in People ex rel. Allen v. York (84 App. Div. 440), not for the purpose of saving any cause of action which the relator might have or preventing the' city interposing the Statute of Limitations as a defense, but for the sole purpose of showing that the final orderin' the mandamus proceeding was not-intended to be a bar to any action which the relator might bring. In the case now before us there has been no decision or determination on the merits. ISTothing has been done since issue was joined and there is no basis for a claim that the commencement of the proceeding would be a bar to an action, if the relator should see fit to bring one to enforce his alleged claim. The reasons given in the opinion in the Daly case, therefore, have no application, and the words referring to it were improperly incorporated in the order. (People ex rel. Allen v. York, supra.)

'The orders appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to dismiss for want of prosecution granted, with ten dollars ■ costs.

O’Brien, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  