
    Thomas F. McHugh, Appellant, v. The Metropolitan Street Railway Co., Respondent.
    (.Supreme Court, Appellate Term,
    November, 1906.)
    Dismissal — Grounds and defenses — Failure to proceed — Excuses, generally -— Delay caused by defendant.
    Where all postponements of the trial of a case have been made with the defendant’s consent, the defendant is not in a position to charge the- plaintiff with laches in its prosecution, and defendant’s motion to dismiss the complaint for want of prosecution will be denied. , .
    Appeal from an order of the City Court of the city of New York, dismissing plaintiff’s complaint.
    Kurzman & Frankenheimer (Hathan Ottinger, of counsel), for appellant.
    Henry A. Eobinson (Bayard H. Ames, of counsel), for respondent.
   Gildersleeve, J.

This is ah appeal from an order of the Special Term of the City Court. The facts appear to be substantially as follows, viz.: The action is for personal injuries. Issue was joined on January 19, 1900. Hotice of trial was served by both parties in July, 1900, and in the same month the ease was put on the calendar by plaintiff. The cause appeared several times on the day calendar and was adjourned, sometimes at the request of one party and sometimes at the request of the other, hut always, on consent of both parties, negotiations were going on in the meantime with a view to a settlement. On February 6, 1905, when the case appeared again on the calendar, although there was a stipulation in which both parties consented to a further adjournment to April, the court sent the case to the foot of the calendar. Before the case had again been reached for trial defendant made a motion, under section 822 of the Code and rule 36 of the General Buies of Practice, to dismiss the complaint for want of prosecution, which motion was granted, and from the order granting such motion plaintiff now appeals to.this court. It is undisputed that the cause was put upon the calendar in July, 1900, and was duly noticed for trial by both parties, and that all adjournments have been made either at the request or with the'consent of the defendant. On each .occasion when the cause appeared on the day' calendar, defendant waived whatever right it may have had to an immediate trial by consenting to an adjournment. Under these circumstances, defendant is not in a position to charge plaintiff with laches in the prosecution of the action. The dismissal of the complaint will inflict a great hardship upon the plaintiff; and, in view of the defendant’s complicity, to say the least of it, in all the delays and adjournments, we are of opinion that the exercise of a wise discretion should have prompted the learned court below to deny the motion.

Dowling, J., concurs ; Dugro, J., taking no part.

Order reversed, with ten dollars costs and disbursements.  