
    EVANS v. BEARDSLEY.
    (Supreme Court, Appellate Term, First Department.
    May 26, 1916.)
    Dismissal and Nonsuit <@=360(6)—Want of Prosecution.
    After successive adjournments at defendant’s instance, followed by the court’s refusal of further adjournments, the case being marked reserved generally, plaintiff requested that the case be restored to calendar for early trial, whereupon defendant moved to dismiss for want of prosecution. Sold, error to grant such motion, and to deny plaintiff’s motion to restore case to calendar.
    [Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 147; Dec. Dig. <@=360(6).]
    other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    Action by Jennie Evans against Hulbert T. E. Beardsley. From a judgment for defendant on a motion to dismiss for want of prosecution, and from an order denying a motion to reinstate case on calendar, plaintiff appeals. Reversed and remanded.
    Argued May term, 1916,
    before GUY, BIJUR, and COHALAN, JJ.
    Thompson & Ballantine, of New York City (T. Langland Thompson, of New York City, of counsel), for appellant.
    Wilder, Ewen & Patterson, of New York City (John Ewen, of New York City, of counsel), for respondent.
   GUY, J.

The proof herein shows that the trial of the action was not unreasonably delayed by the plaintiff, but, on the contrary, was adjourned from time to time at the instance of the defendant, until the court refused to grant further adjournments and marked the case reserved generally, and that the motion to dismiss for want of prosecution was made as the result of and immediately following plaintiff’s request that defendant stipulate to restore the case to the trial calendar for trial at an early date.

Under the circumstances, we are of the opinion that the motion to dismiss should not have been granted, and that plaintiff’s motion to restore the case to the trial calendar should have been granted.

Judgment and orders, therefore, must be reversed, and new trial ordered, without costs of appeal to either party. All concur.  