
    Nathan Ferber and Cilley Ferber, Respondents, v. Morris Newgold and Rachel Newgold, Appellants.
    First Department,
    July 13, 1909.
    Practice — dismissal of complaint for failure to prosecute.
    Where for five years after issue joined the.plaintiff served no notice of trial dr note of issue, and junior issues have been reached and disposed of, the complaint will be dismissed for an unreasonable neglect to prosecute, in the absence of facts excusing the delay.
    Appeal by the' defendants, Morris Mewgold and another, from an order of the Supreme Court, made- at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 26th day of April, 1909, denying the defendants’ motion to dismiss the complaint because of an unreasonable neglect to prosecute, and also for an order canceling a lis pendens.
    
    
      John Bogart, for the appellants.
    No appearance for the respondents.
   Laughlin, J.:

The action was commenced on the 15th day of April, 1904, and is brought to have an instrument purporting to be a deed absolute, on its face, declared to be &■ mortgage, and for an accounting and -for a reconveyance of the ' premises. A lis pendens was filed against the premises which are situated in the borough of Manhattan, Mew York, and it remains undischarged. The answer was served on or about the 5th day of May, 1904, and -admits that the instrument was intended as a mortgage and as security for certain indebtedness which the défendants allege has not been paid, and they also allege that it was intended as security for other moneys expended by them pursuant to an agreement which is made a part of such agreement, and judgment is demanded that the' complaint be dismissed. It is alleged in the complaint that the defendants entered into possession of the premises under the deed. It thus appears that the defendants are lawfully in possession of the premises as mortgagees. After issue was joined, the plaintiffs moved for an injunction and for the appointment of a receiver. This motion was denied on the 10th of May, 1904. Thereafter nothing was done by the plaintiffs with respect to bringing the action to trial until the motion for a dismissal of the complaint for a neglect to prosecute the action was made! Mo notice of trial was served and no note of issue was filed. The motion to dismiss the complaint was made in the month-of. April, 1909, or about five years after issue was joined, and long after younger issues had been reached and tried. Mo affidavit was presented in opposition to the motion, but counsel for plaintiffs was heard orally. The court, instead of granting the motion, denied it upon' condition that the plaintiffs forthwith file a note of issue and pay ten dollars costs of the motion. We are of opinion that the motion should have been granted. The rule has long since been established that where junior issues have been reached for trial it is incumbent on the plaintiff to show facts to excuse Ms apparent neglect to prosecute the trial with due diligence, and that in the event of his failure so to do, the motion should be granted. ■ (Anderson v. Hedden & Sons Co., 116 App. Div. 231.)

The order should, therefore, be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

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