
    ELLA B. TABER, Appellant v. EDWARD L. TABER, Respondent.
    
      Dismissal of complaint for want of prosecution in an action for a separation.
    
    This action, was begun March 26, 1891. Defendant was arrested on that day on proofs that he was about to leave the State, and was held to bail and subsequently surrendered by his bondsmen, to the custody of the sheriff, on the 29th day of April, 1891, and since that time has been in Ludlow street jail. The answer was served April IS, 1891, and after several] extensions of time to reply, a reply was served July 2, 1891. The cause was not noticed for trial for the October or November terms, and younger issues have been tried in their regular order on the calendar before this motion to dismiss was made. The plaintiff claimed that defendant was in contempt for non-payment of alimony, ordered by the court, and that she has not the means to prosecute the action, etc., and defendant being in contempt, etc., is not in a position to move to dismiss the complaint.
    
      Held, that defendant is in custody by the surrender of his bondsman and is not imprisoned for contempt of court, as no proceedings have been taken to punish him for contempt, and the motion to dismiss presented the usual questions on such a motion, with the circumstance in favor of the moving party, that he has been in prison seven months, with a strong probability that he must remain there unless relieved by the trial and determination of this action. It was discretionary with the court to grant or refuse this motion; and an appellate tribunal will not interfere except in a case where the discretion has been abused or improperly exercised, and, in the case at bar, it was not so abused or exercised.
    Before McAdam and Gildersleeve, JJ.
    
      Decided December 15, 1891.
    Appeal from order granting defendant’s motion to dismiss the complaint for neglect to prosecute the action unless plaintiff notices the cause for trial at the December term, and proceeds to trial.
    
      Edward Grosse, for appellant.
    
      Isaac Y. Miller, for respondent.
   By the Court.—Gildersleeve, J.

This action was for a separation, and was begun on March 26, 1891. The defendant was arrested on that day, on affidavits setting forth his alleged intention of leaving the State. He was held to bail, and subsequently surrendered by his bondsmen, on the 29th day of April, 1891, to the custody of the sheriff; since which time he has been in Ludlow street jail. The answer was served on the 15th of April, 1891, and the plaintiff, after obtaining a number of extensions, served a reply on the 2d day of July. The case was not noticed for trial, nor placed upon the calendar for the October or November terms, and younger issues had been tried in their regular order on the special term calendar of this court before this motion to dismiss was made.

The plaintiff gave, as a reason for her neglect to bring the action to trial, the fact that the defendant has neglected to comply with the order of the court requiring him to pay alimony and counsel fee, and that she has not the means to prosecute her action. The learned counsel for the plaintiff urges in his brief that the defendant, being in contempt for non-payment of alimony due April 20th, was not in a position to move to dismiss the complaint. This position cannot be maintained. The defendant is in custody because he was surrendered by the bondsmen who became his surety at the time of his arrest upon the ground, as was alleged, that it was defendant’s intention to leave' the state. He is not imprisoned for contempt of court, as no proceedings have been taken to punish him for contempt.

The motion herein, therefore, presented the usual questions arising upon motions to dismiss for want of prosecution, with the aggravated circumstance in favor of the moving party that he had been seven months in prison, with a strong probability of being obliged to remain there for the balance of his life, unless relieved by the trial and determination of this action.

Section 822 of the Code provides that where the plaintiff unreasonably neglects to proceed in the action against the defendant, or one or more defendants, against whom a separate judgment may be taken, the court may, in its discretion, upon the application of the defendant or defendants, or any of them, against whom he so neglects to proceed, dismiss the complaint as against the moving party or parties, and render judgment accordingly.” Rule 36 of the General Rides of Practice provides that defendant may make the motion to dismiss, under said section 822 of the Code, at any time after younger issues shall have been tried in their regular order; ” and it further provides that “ 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 may be just, to bring the said action to trial at a future term or circuit.”

This section of the Code, supplemented by this rule, makes it discretionary with the court to grant or refuse the motion, and to impose such terms as it thinks proper; and an appellate tribunal will interfere only when the discretion has been abused or improperly exercised. James v. Shea, Supreme Court, General Term, First Department, Davis, P. J., 2 Civ. Pro. R., 358.

In the case at bar, we do not think that the special term either abused or improperly exercised its discretion.

The order appealed from is modified by allowing plaintiff to notice the cause for the January term, instead of the December term, as provided in the order, and as thus modified, is affirmed, with ten dollars costs.

McAdam, J., concurred.  