
    Ella B. Tabor, App’lt, v. Edward L. Tabor, Resp’t.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed December 14, 1891.)
    
    Dismissal of complaint—Failure to prosecute.
    An action for separation was not noticed for trial nor placed on the calendar for seven months, younger issues being tried in the meantime. Defendant was in jail during that time, having been surrendered by the sureties on his bond given in ne exeat proceedings. Plaintiff claimed that she had no means to prosecute the action, as defendant had not paid the alimony ordered. Held, that it was discretionary with the court whether to grant a motion to dismiss and to impose such terms as it deemed proper, and that an order directing a dismissal unless plaintiff try the action at the next circuit was proper.
    Appeal from an order granting defendant’s motion to dismiss the complaint for neglect to prosecute, unless the plaintiff notices the cause for trial at the December term and proceeds with the trial.
    
      Edward Grosse, for app’lt; Isaac Y Miller, for resp’t.
   Gildersleeve, J.

This action was for a separation, and was begun on March 26, 1891. The defendant was arrested on that day, on affidavits setting forth his alleged intention of leaving the state. He was held to bail, and subsequently surrendered by his bondsmen, on the 29th day of April, 1891, to the custody of the sheriff; since which time he has been in Ludlow Street Jail. The answer was served on' the 16th of April, 1891, and the plaintiff, after obtaining a number of extensions, served a reply on the 2d day of July. The case was not noticed for trial, nor placed upon the calendar for the October or November terms, and younger issues had been tried in their regular order on the special term calendar of this court before this motion to dismiss was made.

The plaintiff gave, as a reason for her neglect to bring the action to trial, the fact that the defendant has neglected to comply with the order of the court requiring him to pay alimony and counsel fee, and that she has not the means to prosecute her action. The learned counsel for the plaintiff urges in his brief that the defendant, being in contempt for non-payment of aljmony due April 20th, was not in a position to move to dismiss the complaint. This position cannot be maintained. The defendant is in custody because he was surrendered .by the bondsmen who became his surety at the time of his arrest upon the ground, as was alleged, that it was defendant’s intention to leave the state. He is not imprisoned for contempt of court, as no proceedings have been taken to punish him for contempt.

The motion herein, therefore, presented the usual questions arising upon motions to dismiss for want of prosecution, with the aggravated circumstance in favor of the moving party that he had-been seven months in prison, with a strong probability of being obliged to remain there for the balance of his life, unless relieved by the trial and determination of this action.

Section 822 of the Code provides that “where the plaintiff unreasonably neglects to proceed in the action against the defendant, or one or more defendants, against whom a separate judgment may be taken, the court may, in its descretion, upon the application of the defendant or defendants, or any of them, against whom he so neglects to proceed, dismiss the complaint as against the moving party or parties, and render judgment accordingly.” Rule 36 of the General Rules of Practice provides that defendant may make the motion to dismiss, under said § 822 of the Code, “ at any time after younger issues shall have been tried in their regular order ” ; and it further provides that “ if it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term or circuit.”

This section of the Code, supplemented by this rule, makes it discretionary with the court to grant or refuse the motion, and to impose such terms as it thinks proper and an appellate tribunal will interfere only when the discretion has been abused or improperly exercised. See James v. Shea, Supreme Court, General Term, First Department, Davis, P. J., 2 Civ. Pro., 358.

In the case at bar we do not think that the special term either abused or improperly exercised its discretion. °

The order appealed from is modified by allowing plaintiff to notice the cause for the January term, instead of the December term, as provided in the order, and thus modified is affirmed, with ten dollars costs.

MoAdam, J., concurs.  