
    Joseph Mladinich, Respondent, v. Johnston Livingston, as President of the National Express Company, Appellant.
    First Department,
    March 23, 1906.
    Trial — motion to dismiss complaint for unreasonable delay in bringing cause to trial — burden on plaintiff to excuse delay — when plaintiff allowed to try cause on terms.
    Under section 822 of the Code of Civil Procedure and court rule Mo. 36, the Special Term on motion may in its discretion dismiss the complaint in- an action after issue joined on the ground of unreasonable delay by the plaintiff in-'moving the cause for trial. When on such a motion it is shown that younger issues have been tried in the regular order, the fact establishes a grima facie cause of neglect, and the burden is on the plaintiff to excuse it.
    When a cause was at issue in 1900, and was not placed upon the calendar until 1905, such delay is not excused because the defendant alleged as a defense that there was another action pending, which action does not appear to have been disposed of. Nor is such delay excused because the plaintiff was unable to pay his attorney the disbursements necessary to place the cause upon the calendar.
    However, when the defendant delays making a motion to dismiss the complaint until the plaintiff has placed the cause upon the calendar, the motion will he denied on condition that the plaintiff pay costs of motion and stipulate to try the cause when reached without further delay.
    Appeal by the defendant, Johnston Livingston, as president of the National Express Company, from an order of the Supréíne Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day* of January, 1906, denying the defendant’s motion to dismiss the plaintiff’s complaint because of his unreasonable neglect to prosecute the action.
    
      Joseph W. Welsh, for the appellant.
    
      Herman Gottlieb, for the respondent.
   Ingraham, J.:

Upon an affidavit of one of the attorneys for the defendant that this action was commenced on June 5, 1900 ; that it ivas finally at issue on September 15, 1900, and no steps were taken by the plaintiff to place the case upon the calendar until November" 17, 1905, when a notice of trial for the December term in 1905 was served, and that younger issues have been tried in their regular order upon the calendar, the defendant made a motion to .dismiss this action. Section 822 of the Code of Civil Procedure provides that where the plaintiff unreasonably neglects to proceed in the action against the defendant, the court may in its discretion, upon the application of the defendant, dismiss the complaint as against the moving party, and render judgment accordingly ; and rule 36 of the General Rules of Practice provides that whenever an issue of fact in any action pending in any court 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. These facts establish" a prima facie case of neglect on the part of the plaintiff to proceed with the action, and "the plaintiff was thereupon called to explain his neglect, or submit to a dismissal. (Zafarano v. Baird, 80 App. Div. 144; McMann v. Brown, 92 id. 250.) Notwithstanding the fact that the defendant brought himself within this section of the Code and the rule, the court denied the motion, with ten dollars costs to the plaintiff.

The defendant having made out & prima facie case for the dismissal of the complaint, the question was whether or- not the plaintiff made it appear to the court that his neglect to bring the action to trial had not been unreasonable, for where that is made to appear the court may permit the plaintiff on such terms as may be just to bring the action to trial at a future term. (General Rules of Practice, rule 36.) The plaintiff, as an excuse, stated that as the defendant had alleged in his "answer that another action was pending on behalf of the plaintiff to recover for such injury, the plaintiff’s.attorney could not properly notice the case for trial until the other action was disposed of.

This does not follow. No reason is disclosed why the former action could not have been discontinued or disposed of at any time. Certainly the fact that the defendant has a good defense to the action is no reason why the plaintiff should delay for five years in noticing his case for trial and place it on the calendar. Nor does it appear that this other action has.now been disposed of, or that the plaintiff is in any different situation from that- which he was in at the time the case was at issue.

The plaintiff also stated that owing to his impoverished condition, he was unable to pay to his attorney the necessary disbursements. The amount required to place the case upon the calendar is so insignificant that this would not seem to be an excuse. Under rule 36 of the General Rules of Practice it is only when it is made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable that the court is justified in denying the defendant’s motion and in allowing the plaintiff to try the case. It does not appear that the neglect of the plaintiff to bring the action to trial has not been unreasonable. If this motion had been made by the defendant before the plaintiff had noticed the case and placed it; upon the calendar, I should -think that upon these papers the defendant was entitled to the order. (See Seymour v. Lake Shore & M. S. R. Co., 12 App. Div. 300.) The defendant, however, has waited until after the plaintiff has noticed the case and put it on the calendar, and this fact can he considered by the court in determining whether the motion should or should not have been granted.

It seems that the plaintiff has been guilty of neglect in prosecuting the action. We think, however, that under all the circumstances thé plaintiff should have an opportunity, of trying his case; it should,, however, only be upon condition that the plaintiff pay to the defendant ten dollars costs of opposing the motion and stipulating to try the case when reached Without further delay.

The order appealed from -should, therefore, be modified accordingly, with ten dollars costs and disbursements to the defendant to abide the result of the action.

O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.

Order modified, with ten dollars costs and disbursements to the defendant to abide event. Settle order on notice.  