Heymer v. Arthur
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Opinion of the Court
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Van Brunt, P. J.
It appears from the affidavit of the plaintiff that the delays arising in the trial of this case were partially caused by the defendant, and seem to have been connived at by her or her counsel. Prior to the making of this motion, it does not appear that the defendant showed any disposition to press the case for trial. At the time of making this motion, the plaintiff offered to place the case on the day calendar or short-cause calendar immediately for trial, if the defendant so desired. We think, under the circumstances of this case, that it was too harsh a punishment to dismiss his action. Ample justice would have been done by compelling the plaintiff to stipulate to try the case at the next term of the court, and to pay all costs of the motion. The order appealed from should therefore be reversed, but without costs, and the motion denied, upon the giving of such a stipulation by the plaintiff, and the payment of $10 costs of the motion. The judgment necessarily follows with the reversal of the order. All concur.
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