
    Erhardt Oehlhof, Appellant, v. Herman Solomon and Lena Solomon, Respondents.
    (Supreme Court, Appellate Term,
    January, 1910.)
    Dismissal — Grounds and defenses — Failure to proceed.
    "Where an action was tried in 1900 and the judgment recovered was reversed in 1902 and the cause was placed upon the general calendar a few months later and afterward marked “ reserved generally;” and where the defendant died in 1900 and in 1909 a motion was made to dismiss for want of prosecution, and it appears that the action was for fraud in transactions had personally with the deceased defendant and no excuse for plaintiff’s delay is shown, an order of dismissal is properly granted and will be affirmed upon appeal.
    Appeal from two orders of the City Court of the city of New York; one denying the plaintiffs motion to restore the cause to the day calendar and the other granting the defendants’ motion to dismiss for failure to prosecute.
    
      Bennet & Silverman (William S. Bennet, of counsel), for appellant.
    Louis Lowenstein, for respondents.
   Giegerich, J.

The action was commenced in October, 1898, and was tried on May 22, 1900, resulting in a verdict for the plaintiff, which judgment, after appeal to the Appellate Term and ultimately to the Appellate Division upon leave given, was reversed, in June, 1902. Thereafter upon motion of the plaintiff the case was placed on the general calendar, on the 28th day of November, 1902; and subsequently, but how long afterward or upon whose motion or at whose request or to subserve whose convenience does not appear, it was marked “reserved generally.”

On the 19th day of January, 1906, the defendant Herman Solomon died.

On the 19th day of April, 1909, the plaintiff made this motion to restore • the cause to the next Friday calendar, which motion was adjourned by consent until May 6, 1909, at which time the defendant, by an order to show cause, brought on a motion to dismiss the action for unreasonable neglect to proceed with the same.

Both motions came on to be heard together, and the motion to restore was denied and the motion to dismiss was granted, and from such orders the present appeal has been taken.

It further appears from the papers, without contradiction, that upon the former trial of the action it was claimed that the false representations upon which the plaintiff sought to recover were all made by the defendant Herman Solomon, who is now dead. It is further stated, without contradiction, that it appeared upon the former trial and from the facts herein that all the transactions were had between the plaintiff and the deceased defendant Herman Solomon.

The appellant relies upon the case of Clare v. Crittenden, 11 N. Y. Supp. 519; 34 N. Y. St. Repr. 120, as establishing the rule that, where a case is reserved generally, it cannot be dismissed for failure to prosecute. An examination of the report of that case, which was decided hy the General Term in this department in 1890, shows that no such rule is laid down. There it appeared that a counterclaim had been set up to which a reply had been served, and it further appeared that the opposing affidavit stated that the cause was reserved for the convenience of both parties. Furthermore, it did not appear in that case that any hardship would be imposed upon the defendants by allowing the case to be brought on for trial. The facts in that case and in the present case are so manifestly different that no comment is necessary.

FTo excuse whatever is shown why the plaintiff should have delayed all these years and until the death of the defendant with whom the transactions in suit were claimed to have been had and upon whose testimony the defense would have to rest.

The orders are, therefore, affirmed, with ten dollars costs and disbursements.

Dayton and Lehman, JJ., concur.

Orders affirmed.  