
    LOOG v. MACE et al.
    (Supreme Court, Appellate Term.
    November 12, 1909.)
    Dismissal and Nonsuit (§ 60*)—Delay in Prosecution—Right to Dismissal.
    A complaint will be dismissed on defendant’s motion for failure to prosecute, where younger issues have been tried and no excuse is offered for the delay.
    [Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-142, 148; Dec. Dig. § 60.*]
    *For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    Appeal from City Court of New York.
    Action by John Loog against Arthur J,.Mace and others. Erom an order of the City Court, denying the motion of defendant Eugene G. Gwyer to dismiss the complaint for failure to prosecute, he.appeals.
    Reversed, and motion granted.
    Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.
    Nadal, Carrere & Jones (Edward P. Morton, of counsel), for appellant.
    Alfred B. Osgoodby (P. M. Overlander, of counsel), for respondent.
   LEHMAN, J.

The defendant having brought himself within the provisions of the Code of Civil Procedure and the General Rules of Practice, which justify the court in dismissing the complaint for failure to prosecute where younger issues have been tried, no excuse having been offered, for the delay, the motion should have been granted. MeGrath v. Murtha & Schmohl Co., 128 App. Div. 278, 112 N. Y. Supp. 679.

The order should therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs in the court below. All concur.  