
    MARX v. MANHATTAN RAILWAY CO.
    N. Y. Supreme Court, First District, Circuit ;
    
    
      November, 1888.
    
      limitations; failure to prosecute action.] A. non-suit ordered in a partly tried cause, on the refusal of plaintiff’s attorney to proceed because his request for leave to amend the complaint in a necessary point has been denied, is not a dismissal of the complaint for neglect to prosecute, within the meaning of the Code of Civil Procedure, section 406—which allows a commencement of a new action in certain cases.
    
    
      Motion to dismiss complaint.
    A former trial of this action was had in the court of common pleas. Upon that trial, the plaintiff’s attorney moved to amend the complaint, and upon this motion being denied, refused to proceed with the trial, and submitted to a non-suit. The defendant’s attorney now moves to dismiss the complaint on the ground that the cause of action is barred by the statute of limitations, the complaint having been dismissed in the court of common pleas, as he claimed for neglect to prosecute the action, within the meaning of section 405 of the Code.
    
      Edward C, James, {Davies & Sapallo, attorneys), for the motion.
    
      Christopher Fine {Aaron Kahn, attorney), opposed.
    
      
       The section in question is as follows :
      § 405. “ If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits ; the plaintiff, ■or, if he dies and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.”
    
   Babbett, J.

The question is whether the effect of what transpired in the court of common pleas was equivalent to submitting to a non-suit ; it seems to me it was. It was not a dismissal of the complaint for neglect to prosecute the action, within the meaning of section 405 of the Code of Civil Procedure. That refers to an order made on motion to dismiss for such neglect to prosecute, and is a well understood proceeding.

In the case at the bar the trial was actually commenced. A motion was made to amend, which the court denied. The plaintiff then declined to proceed further with the trial, for the reason that success was hopeless, because of such denial. It was quite the same as though he had proceeded and given evidence in support of his complaint hs originally formulated. He knew that the pooofs would have failed to establish his cause of action as thus formulated, and consequently that a non-suit must follow. It was simply a saving of time to acknowledge that this must be the result, in view of the inability to amend. The non-suit was inevitable because the proofs would not support the complaint. He had proofs to support the complaint, as it would have read in case the amendment had been permitted. The moment, however, the amendment was refused, he was necessarily defeated; and it was as well to acknowledge the situation. In effect, he tried his case, and because of a judicial ruling, acknowledged defeat, and in substance submitted to a non-suit. It was not a neglect to prosecute. He prosecuted and failed. That was the gist of the matter. I must, therefore, deny the motion, and permit the case to proceed.  