
    Mary Eliza Graham, Appellant, v. J. Edward Ackley, Respondent, Impleaded with Others.
    
      Dismissal of complaint for want of prosecution—denial thereof on certain conditions— a condition that a §50,000 mortgage he given is unreasonable.
    
    The authority given to the court, under section 832 of the Code of Civil Procedure and rule 36 of the General Rules of Practice, to dismiss an action because of the plaintiff’s failure to prosecute it, is discretionary ; and where in an action in ejectment, it appears that, although the'plaintiff has been in default, and younger issues have been tried in their order on the calendar, the defendant has not exercised his right to notice the case for trial, and other parties to similar actions brought by the plaintiff are awaiting the result of a pending action of the same character, the court may properly deny upon conditions a motion to dismiss the complaint for a failure to prosecute the action. • ■
    
      A condition which requires the plaintiff to consent to the creation of a mortgage lien upon the premises in question in favor of the defendant to the amount of $50,000 in addition to the costs is, however, unreasonable.
    Appeal by the plaintiff, Mary Eliza Graham, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 9th day of June, 1897, dismissing her complaint for want of prosecution; also from a judgment entered in said clerk’s office on the 18th day of June, 1897, dismissing said complaint and vacating and canceling a Us pendens filed in the action ; also, from an order made at the Yew York Special Term and entered in'said clerk’s office on the 18th day of June, 1897, making said order of Jurie ■ 9, 1897, absolute, and also from an order made at the Yew York Special Term and entered.in said clerk’s office oh the 22d day of June, 1897, denying her motion to resettle the said order of Juñe 9, 1897.
    
      Truman H. Baldwin, for the appellant.
    
      Paul N. Turner, for the respondent. '
   Rumsey, J. :

The action was ejectment and the complaint contained the usu’al allegations. The answer was peculiar in its structure and consiste/! of a denial, upon information and belief, of the plaintiff’s title; ah admission that the- defendant is in possession and occupancy of-the premises, but a dénial that his possession is unlawful. Issue was joined by service of this answer about the 1st of June, 1894. 1 Yo steps seem to have been taken by either party to bring the case to trial, and it appears, and is not disputed, that younger issues than this had been reached in their regular order on the calen dar-und tried before this motion was made. Upon that state of facts the court clearly had authority in its discretion to dismiss the plaintiff’s complaint for a failure to' prosecute the action. (Code Civ. Proc. § 822; Genl. Rule, 36.) But it is not imperative upon the courfto make an order of this kind. Whether it shall do so or not is-discretionary and depends upon whether the plaintiff offers a sufficient ■ excuse for his failure to try the case. In this case it has been made to appear, and is not practically disputed, that the plaintiff, about the time that this action was brought, brought several other actions against different defendants to recover other lands in the. same vicinity which she claimed under the- same title as that relied upon, in this action. . One of these actions was upon the calendar and ready for trial shortly before this motion was made. The plaintiff claims that the parties to.the. other actions were awaiting the result of this particular action before proceeding further with the cases. This, however, is denied by the defendant. It is not disputed, however, that the defendant, although he was at liberty to have put'this case upon the calendar had he seen fit, and thereby obtain the right to move it when it was reached in its order, did not choose to do so, but permitted it to stand undisposed of for some reason which is not made to appear. It- is quite true that the defendant was not called upon to put the case on the calendar, and that he might, if he preferred, do just as he has done in this case,-relying upon his motion to ■dismiss the complaint if younger issues had been tried before the plaintiff moved the case. But where he sees fit to pursue- that course, and does not show any disposition on his own part to press the case for trial, that fact is of some weight as excusing the plaintiff when a motion of this kind has been made. (Heymer v. Arthur, 27 N. Y. St. Repr. 105.) Upon all the facts, although the case was a proper one for the court to make an order dismissing the complaint had it seen fit to do so, yet there was sufficient' to warrant it, in the exercise of- its discretion, in denying the motion upon such coriditions as might be just, and giving to the plaintiff, although she was in default, the right to continue the prosecution of her action. This seems to have been the view taken of the case by the learned justice at Special Term, who denied the motion upon certain conditions.

But these conditions, as it seems to us, were not such as ought to have been imposed in the case. It appears that there was a mortgage upon the premises sued for in this action, and other premises, to a very considerable amount. The lands of the plaintiff, which were described in that mortgage,' would not, in fact, be subject to it if it should turn out that her title was superior to the title of the mortgagors as she claimed. For that reason, if - she recovered in the action, she would take the premises free from the lien of the mortgage. The conditions upon which she was permitted to prosecute this action further were that she should consent to the making of a mortgage which should practically be a lien upon her premises as well as the others, and these conditions amounted, in fact, to the creation of a lien by the plaintiff in favor of the defendant upon her land to the amount of $50,000, in addition to paying the costs which were imposed upon her. These conditions, we think, were unreasonable, and ought not to have been imposed; and for that reason the order imposing them should be modified.

The order should be that the order appealed from is affirmed, with ten dollars^ costs and disbursements of this appeal, and the complaint dismissed for want of prosecution, unless the plaintiff ■shall, within five days after the entry of this order and service of a copy of it upon her, pay to the defendant ten dollars costs of the motion, and tender to the defendant a stipulation to refer the case to a referee to hear and determine and to proceed forthwith with that reference. If these conditions are complied with, then the several orders appealed from are reversed and the motion denied, without costs to either party in this court.

The defendant must notify the plaintiff of his acceptance of the ■stipulation to refer within ten days after it shall have been served upon him.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred. ■

Order affirmed, with ten dollars costs and disbursements, and complaint dismissed for want of prosecution, unless the plaintiff shall, within five days after notice of entry of order, pay to defendant ten dollars costs of motion, and tender-to defendant a stipulation to refer the case and to proceed forthwith with the reference. If these •conditions are complied with, orders appealed from reversed and the motion denied, without costs to either party in this court; the defendant to notify plaintiff of his acceptance of the stipulation to refer within ten days after service thereof 'on him.  