
    (51 Misc. Rep. 588.)
    McHUGH v. METROPOLITAN STREET RY. CO.
    (Supreme Court, Appellate Term.
    November 14, 1906.)
    Dismissal—Failure to Prosecute—Waives.
    Where a cause placed on the calendar in July, 1900, was noticed for trial by both parties, and all subsequent adjournments were taken either at the request or with the consent of the defendant, defendant was thereby estopped to charge plaintiff with loches in the prosecution of the action and demand a dismissal for want of prosecution, as authorized by Code Civ. Proc. § 822, and Gen. Prac. Rule 36.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 17, Dismissal and Non-suit, § 147.]
    
      Appeal from City Court of New York.
    Action by Thomas F. McHugh against the Metropolitan Street Railway Company. From an order of the New York City Court, dismissing plaintiff’s complaint, he appeals. Reversed.
    Argued before GINDERSLEEVE, DUGRO, and DOWNING, JJ.
    Kurzman & Frankenheimer (Nathan Ottinger, of counsel), for appellant.
    Bayard H. Ames, for respondent.
   GILDERSLEEVE, J.

This is an appeal from an order of the Special Term of the City Court. The facts appear to be substantially as follows, viz.: The action is for personal injuries. Issue was joined on January 19, 1900. Notice of trial was served by both parties in July, 1900, and in the same month the case was put on the calendar by plaintiff. The cause appeared several times on the day calendar, and was adjourned, sometimes at the request of one. party and sometimes at the request of the other, but always on consent of both parties. Negotiations were going on in the meanwhile with a view to a settlement. On February 6, 1905, when the case appeared again on the calendar, although there was a stipulation in which both parties consented to a further adjournment to April, the court sent the case to the foot of the calendar. Before the case had again been reached for trial, defendant made a motion, under section 822 of the Code and rule 36 of the General Rules of Practice, to dismiss the complaint for want of prosecution, which motion was granted; and from the order granting such motion plaintiff now appeals to this court. It is undisputed that the cause was put upon the calendar in July, 1900, and was duly noticed for trial by both parties, and that all adjournments have been made either at the request or with the consent of the defendant. On each occasion, when the cause appeared on the day calendar, defendant waived whatever right it may have had to an immediate trial by consenting to an adjournment. Under these circumstances, defendant is not in a position to charge plaintiff with loches in the prosecution of the action. The dismissal of the complaint will inflict a great hardship upon the plaintiff, and in view of the defendant’s complicity, to say the least of it, in all the delays and adjournments, we are of opinion that the exercise of a wise discretion should have prompted the learned court below to deny the motion.

Order reversed, with $10' costs and disbursements.

DOWNING, J., concurs. DUGRO, J., took no part.  