
    Moses Israel, Plaintiff, v. Henry A. Voight et al., Defendants.
    (New York Superior Court
    Special Term,
    April, 1895.)
    A dismissal of the complaint for failure to prosecute will be granted on motion of the defendant where younger issues have been disposed of in their regular order on the calendar and the plaintiff’s delay is not excused.
    A defendant’s right to move to dismiss the complaint for failure to prosecute is not waived by his service of a notice of trial, where the cause is not put upon the calendar, nor is he required to place the cause on the calendar before making the motion.
    Motioh to dismiss complaint, with costs, for failure to prosecute action.
    
      Regvnald H. Arnold, for motion.
    
      Lyman Rindskojpf, opposed.
   Gildeesleeve, J.

This is a motion to dismiss the complaint, with costs, for failure to prosecute. Issue was joined on the 14th day of June, 1893; no note of issue has been filed. The action is one triable by jury. On September 12,1894, defendants served notice of trial, and on the lltli of March, 1895, defendants served notice of motion to dismiss the complaint for plaintiff’s unreasonable neglect to prosecute the action; thereafter, and on the 18th of March, 1895, plaintiff served notice of trial. Since issue was joined herein, younger issues have been reached in their regular order on the calendar and been disposed of. It is the well-established practice in the first judicial district of the Supreme Court and in this court that whenever an issue of fact triable by a jury has been joined, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant, at any time after younger issues shall have been tried in their regular order, may move at Special Term for the dismissal of the complaint, with costs. But if it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as maybe just, to bring the said action to trial at a future term or circuit. Buie 36, General Rules of Practice; Code, § 822. The defendants hayo not waived their rights herein by the service of their notice of trial, for the cause has never been put on the calendar (Chilcott v. Waddingham, 1 Law Bull. 50); nor were they required to put the cause on the calendar before making this motion. James v. Shea, 2 Civ. Proc. Rep. 358, The facts presented on this motion meet the requirements of rule 36, and plaintiff has not shown any excuse for his neglect to prosecute such as would justify the court in exercising its discretionary powers to permit plaintiff to proceed with the action. The case of Thompson v. Krider, 8 How. Pr. 248, providing that where both parties notice the cause neither can charge delay or default upon the other for not bringing it to a hearing, does not apply to this motion, since the plaintiff did not notice the cause for trial until after the motion papers herein had been served on him by defendants, and also for the reason that it was not a case in the first judicial district. Rule 36 of the General Rules of Practice applies only to courts in the first judicial district, so that the cases cited by plaintiff’s counsel do not govern this motion.

The motion to dismiss the complaint, with costs, must be granted.

Motion granted, with costs.  