Welch v. McCoy

SMITH, J.

Appeal from an under dismissing an action! on ftae ground olf unreasonable delay in the prosecution thereof. The action which was 'begun in April, 1903, was brought to determine adverse claims to real estate. The complaint was in th'e usual form. Defendants answered separately, denying the allega *275 tioos oí feble complaint, and by way of counterclaim - alleging title in ¡themselves- and a demand) for affirmative relief. The record. Ndis'dtees -that the cause was reached for ¡trial on June 22, 1903V. before the court without a jury, and that the taking of testimony was completed on- that day. At the close of ¡the evidence -plaintiff moved the court ¡for judgment. The -court reserved ite decía— ion until the final -hearing of thle case. No- findings! of fold: or conclusions off law appear to have been proposed by,either party, nor was ¡there any argument or other proceedings had in the cause until the 17th day of February, 19x7, when plaintiff’s attorney served a notice of trial for a term of court beginning February 27th.

The 'defendant E. F. MtCo-y died Decémber 31, 1913. The •other ¡defendant, Anna E. McCoy, was appointed administratrix ■of his estate, which was- fully administered upon and closed ora November 5, 1914. Upon the calling of the calendar at the opening of the February, 1917, term, -the death of the defendant McCoy was suggested; that his estate had! -been fully administered upon avid the administratrix discharged, and that neither the administratrix nlor any other person had been -substituted as defendant in the action. No substitution appears to have been asked by either party. The record discloses various negotiations- and' offers of settlement on the part of plaintiff which are set out in detail, all of which offers were rejected by defendants- or -withdrawn by plaintiff. Plaintiff’s final offer was made in the fall of 1916, accompanied by a stipulation, which defendant’s counsel were requested to sign., that -the cause be finally submitted for decision upon a transcript of the evidence taken in 1903, in clase the offer of settlement was rejected. Both' the-offer of settlement and the stipulation were rejected by •defendant’s counsel. No further action was taken by either party until service of notice of trial by appellant’js counsel in February, 1917. On ¡the last day -of the February, 19x7, ¡term, appellant's counsel asked that -a -day be assigned for trie trial of the -cause, naming April 20th, when court would be in session, in .reply to which, respondent’s counsel indicated that the day was satisfactory, but his consent thereto must be subject to his right to move for a dismissal of the action. The motion was heard in pursuance of the stipulation, on April 20, 1917, upon affidavit® filed by both parties, *276 and on April 21st Ithe trial court made and filed its 'decision that plaintiff had 'been guilty of unreasonable neglect in the prosecution of the action, and that.the .action be dismissed.

[i, 3] Subdivision 4, § 310, Code of Civil Procedure, provides that tibe court may dismiss the complaint in case of unreasonable neglect on the part of the plaintiff to proceed in the cause. It is appellant's contention that the trial .court erred ini dismissing the action for the reasons, among others, that the dcfendaot had been equally negligent -as the plaintiff; that there is rfio statute in -this state or any rule of court 'requiring a cause to be brought on for trial within any given time; and that the cause was Bully fried and submitted, was ¡i® the hands of the court, and delay in its determination was not the fault of appellant. We are of the view that the cause was never finally submitted to the court for decision, and that this ground .of error is untenable. The Code of Civil Procedure does not in terms require that a cause be brought to trial within a specified time. If is perfectly clear, however, that under the statute unreasonable neglect on the part of plaintiff to proceed in a pending cause i's. a ground for dismissal of the complaint.

Section 882, New York Code Procedure, is substantially like subdivision 4, § 310, of our Code of Civil Procedure. In Jacot v. Marks, 26 Misc. Rep. 670 , 57 N. Y. Supp. 904 , where the answer set up a counterclaim upon a motion to dismiss the complaint for unreasonable delay on the part of plaintiff, that court said:

“There appears to be no doubt of the plaintiffs’ unreasonable neglect to prosecute the action. The answer, however, sets up a counterclaim, and demands affirmative relief, hut it doe's not appear that defendant has taken any steps to bring- the case to trial. He is apparently as guilty of laches as are the plaintiffs.”

Upon that ground the motion to dismiss was denied. See, also, Severin v. Hopper, 37 Misc. Rep. 863 , 76 N. Y. Supp. 977 ; Bignold v. Carr, 24 Wash. 413 , 64 Pac. 519 .

[4] There can be no doubt that there was a sufficient lapse of time to constitute unreasonable 'delay in the prosecution of this action-. It is unnecessary to consider whether the dircumstances were such as to excuse the delay. The defendant, (by reason of filer 'counterclaim, became an actor, and could have taken the *277 ■propea- and necessary steps to obtain a •decision in the action. She made no .effort -whatever to do s'o, anid tínerefore was equally negligent with the plaintiff. A party who, having- demanded affirmative relief by answer, voluntarily fails to avail himself of hli's statutory right to obtain a final determination of the action should not be permitted to obtain an advantage over his opponent merely because of the latter’s -similar negligence. Much as we disapprove 'cf such delays-, which sometimes -bring unmerited criticism upon the administration of justice in the courts, we ■think the trial -court erred in dismissing the action.

The order of the trial court is reversed'.

McCOY, J., took no part in this decision.