
    Lillian Nordica Dome, Appellant, v. Southern Railway Company, Respondent.
    First Department,
    July 11, 1912.
    Practice — dismissal for failure to prosecute—motion pending order staying proceedings.
    Where, in an action to recover for personal injuries, an order has been entered directing that a commission issue tó obtain testimony of certain witnesses on behalf of the plaintiff, and that until the execution and return of the commission the trial of the action and all proceedings on the part of the defendant be stayed, the defendant cannot move to dismiss the action for failure to prosecute, although he may move to vacate the stay.
    Appeal by the plaintiff, Lillian Nordica Dome, from an order of the 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 23d day of April, 1912, dismissing the complaint for failure to prosecute.
    
      John C. Tomlinson, for the appellant.
    
      Allen Wardwell, for the respondent.
   McLaughlin, J.:

This action was commenced on the 15th of April, 1902, to recover $50,000 damages for personal injuries alleged to have been sustained by the plaintiff while a passenger on defendant’s road.

On the 22d of September, 1904, a stipulation was entered into that a commission issue to obtain testimony of certain witnesses on behalf of plaintiff and that until the execution and return of the commission the trial of the action and all proceedings on the part of plaintiff and defendant be stayed. On the twenty-ninth of October following, upon the stipulation, an order was entered directing that the commission issue. The order also contained this provision: “ Further ordered that until the execution and return of the foregoing commissions the trial of the above-entitled action and all proceedings on the part of the plaintiff and defendant be stayed.”

Nothing further seems to have been done under the order, either by the service of interrogatories or' otherwise, but in 1905 negotiations were had looking towards a settlement, the result of which, according to the plaintiff’s affidavit, was an offer on the part of the defendant in the first instance to pay $5,700 and subsequently $7,500. The offer in each instance was declined. «On January 13, 1905, the action was placed at the foot of the call calendar and on January 11, 1907, marked “ stayed.” No further steps appear to have been taken in the action by either of the parties until March, 1912, when defendant served a notice on plaintiff demanding that she substitute a new attorney in place of Mr. Soley, who had acted as such since January 8, 1907 — he having died shortly prior to the service of the notice. Two days after the service of the notice plaintiff designated her present attorneys and then a motion was made by defendant to dismiss the action for want of prosecution. The motion was granted and plaintiff appeals.

The defendant was not in a position to move to dismiss the action. The order directing the issuance of the commission prevented it from making' such a motion and stayed it from taking any proceedings in the action until the execution and return of the commission. The plaintiff could not move the ■ trial of the action without defendant’s consent so long as the order remained in force, and while her delay in obtaining the depositions of the witnesses, as provided in the order, directing the issuance of the commission, might enable the defendant to move to vacate the stay, it did not enable it to move to dismiss the action for lack of prosecution. While that order remained in force the plaintiff as well as the defendant had to obey it, and, therefore, her failure to move the trial furnished no ground whatever for dismissing the action.

Upon the merits I am of the opinion that the motion should have been denied." So far as appears the plaintiff has, at all times, been desirous of trying the action. She has sustained substantial damage as evidenced by the offers of settlement. Whatever delay took place up to the time Mr. Soley was appointed plaintiff’s attorney seems to have been by mutual consent, or at least was as much the fault of one party as the other. After Mr. Soley was substituted as her attorney he was frequently requested, either by the plaintiff or her representative, to proceed in the action. Just why he did not does not appear, nor is there anything in the record to throw any light on that subject, unless it be inferred that by reason of the offers made he thought the action would ultimately be settled without a trial. Under the circumstances, the attorney being dead, and for that reason unable to give any explanation of the delay, plaintiff ought not to be deprived of the right to enforce her cause of action, if she has one, by a trial.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred.

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