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ARTICLE V.
DISMISSAL.

tion.

FORMS. 1289. Affidavit to move for dismissal. 1295. Order dismissing action with. 1290–1293. Statements of ground of

out trial. dismissal suitable to insert 1296. Order absolute after conditional in foregoing form.

dismissal. 1294. Notice of motion (or order to 1297. Judgment dismissing action show cause) to dismiss ac

without trial. FORM No. 1289. Affidavit to move for dismissal without trial. [Title of court and cause.] [Venue.]

A. T., being duly sworn, says:

I. That he is the attorney72 [or, the managing clerk for the attorney) for the defendant [if one of several defendants, name him] in this action (or otherwise state relation to the cause). *

II. [State neglect to proceed as in following Forms.) 13

III. [If an order to show cause is asked, state reason and as to previous application, see page 1172]. [Jurat.]

[Signature.]

Forms Nos. 1290–1293.— STATEMENTS OF GROUND OF DISMISSAL

SUITABLE TO INSERT IN FOREGOING FORM.

FORM No. 1290.

Neglect to obtain leave to sue.74 [Insert in last Form:] — II. That the defendant, Y. Z., is a receiver duly appointed by this court [or, by the Court of

character is erroneous. Kilmer 0. Even. Herald Co., 70 App. Div. 291, 75 N. Y. Supp. 243.

Plaintiff may be required to stipulate to limit his defense to a counter claim interposed. Yellow Pine Co. v. Lehigh Val. Co., 32 App. Div. 51, 52 N. Y. Supp. 281, 6 Anno. Cas. 100.

72 The affidavit for a motion to dis. miss founded on neglect to proceed, in the cause, is properly made by the attorney (Chase v. Edwards, 2 Wend. 283; Jackson v. Woodworth, 3 Cai. 136; s, C., Col. & C. Cas. 480) or his

managing clerk. It may be made by the defendant if he is shown to be personally conversant with the facts showing delay. Ames v. Merriman, 9 Wend. 498, as qualified by Bird t. Moore, 3 Hill, 447.

73 An action will be dismissed if brought by an attorney without authority. Timpson v. Mock, 105 App. Div. 299, 94 Ñ. Y. Supp. 664.

74 As to the grounds of requiring leave, see Vol. I, p. 584, notes to Form 338, and, in reference to receivers, more particularly, p. 1020.

complaint allegetion is budgment?

], by an order [or, judgment], of which a copy is hereto annexed; and this action is brought against him as such receiver to recover (an alleged debt due from said, etc.), as appears by the complaint in this action on file; and this action was, as this deponent is informed and believes, commenced without leave, contrary to the rules and practice of this court (and the terms of the order appointing him].

FORM No. 1291.

Neglect to serve complaint.75 II. That this action was commenced by [personal] service of the summons, a copy of which is hereto annexed, on the defendant, Y. Z., upon the day of , 19, as deponent is informed and believes; that on the day of , 19 , deponent [caused to be] served on plaintiff's attorney, a notice of appearance on behalf of said defendant Y. Z., and due demand of a copy of the complaint (as appears from the annexed affidavit of O. P.) ; but no copy of the complaint has been served upon deponent, and the time within which such complaint may be served expired on the day of

last.

FORM No. 1292.

Neglect to serve other defendants.76 II. That this action was commenced by [personal] service of the summons, a copy of which is hereto annexed, on the defendant, Y. Z., on the day of , 19, as deponent is informed and believes ; that the defendant W. X. is a necessary party to a complete determination of the matters in controversy, and to the protection of the rights of this defendant, 76a as appears by the complaint (and the answer of this defendant). That said W. X. resides at

within this State, and that although the said W. X. might have been served with the summons in this action by reasonable diligence, the plaintiff has wholly omitted to serve him; and, as deponent is informed and believes, has made no efforts to do so, and said defendant W. X. has not appeared in the action, although days [or, months] have elapsed since the service of this defendant, and [here state briefly the stage to which the cause has arrived; and any other acts, such as filing of lis pendens, which show prejudice ]

and month

arrived

75 N. Y. Code Civ. Pro., $ 480.

76 N. Y. Code Civ. Pro., $ 821. The moring defendant may ask costs for himself, but not for the defendant not served. Travis v. Tobias, 7 How. Pr. 90. The moving defendant is not

- barred by having obtained stipula

tions extending his time to answer. Geoghegan v. Luchow, 75 App. Div. 581, 78 N. Y. Supp. 278.

76a Kaliske r. Weil, 33 N. Y. Supp. 413, 24 Civ. Pro. 248. .

FORM No. 1293.

Neglect to proceed to trial.77 II. That this action was brought for [indicate cause sufficiently to show whether the cause was triable at Trial or Special Term, and if in the Supreme Court, add: and that the place of trial is the county of ]; if Rule 36 is relied on, proceed: that issue of fact was joined (as to all the defendants] on the

day of , 19 [but has not been noticed for trial by said defendant].78 That a Trial Term [or, a Special Term of this court], was held at , in and for said county [or, a Trial Term of this court was held], on the day of last past; and that the said plaintiff did not notice the action for trial [or, that said plaintiff having noticed the action for trial, did not proceed and try the same] then, according to the practice of this court; and that issues of a later date were tried at the said term, in the regular order of the calendar. 79

77 The court has inherent power to dismiss for unreasonable neglect to prosecute. Sebring's Admr. t. Sebring's Admr. (below cited); Bancroft v. Sawin (Mass., 1887), 3 New Eng. Rep. 308, and cases cited. And see 14 Abb. Pr. (N. S.) 47, note.

This power is recognized and regulated by N. Y. Code Civ. Pro., $ 822, and Gen. Rule No. 36. And the defendant has, subject to the discretion of the court, a right to dismissal, even after long delay to move for it. Sebring's Admr. v. Sebring's Admr. (N. J., 1887), 10 Abb. Rep. 193. The former practice is stated in Winchell v. Martin, 14 Abb. Pr. (N. S.) 47. If defendant has been served he should show that he has answered. One of several may move for a dismissal as to himself. Salters r. Pruyn, 15 Abb. Pr. 224, if a separate judgment could be had against him. N. Y. Code Civ. Pro., § 822. If a separate judgment could not be had, he should bring on the cause for trial, and, if plaintiff does not appear, take a dismissal there.

The affidavit must show that younger issues upon the calendar have been tried in their regular order - and on so doing, if no excuse for the delay is offered, defendant is prima facie entitled to have the action dismissed, and the burden is on plaintiff to excuse the delay. Fisher Malting Co. v. Brown, 92 App. Div. 251, 87 N. Y. Supp. 37; Zafarino v. Baird, 80 App. Div. 144, 80 N. Y. Supp. 510; Seymour v. Lake Shore,

etc., R. R. Co., 12 App. Div. 300, 42 N. Y. Supp. 92; Watson v. Loomis. 51 Misc. 227; Mladinich v. Living. ston, 112 App. Div. 181. Noticing the action for trial after motion made is of no effect. Fisher Malting Co. v. Brown, supra. To merely allege“ inadvertence" as an excuse is ineffective. McMann v. Brown, 92 App. Div. 249, 87 N. Y. Supp. 38. Nor will a vague and general statement of continued illness suffice. Seymour v. Lake Shore, etc., Co., supra.

A mandamus proceeding, in which an issue of fact has been joined, may be dismissed. See People ex rel, r. York, 106 App. Div. 590, 94 N. Y. Supp. 812.

78 The clause in brackets though usual is not, perhaps, essential. Defendant is not bound to notice the cause, and his doing so should not prejudice him. Israel v. Voight, 12 Nise. 206, 34 N. Y. Supp. 28, I Anno. Cas. 324; Bowles 1. Van Horne, 11 Abb. Pr. 84, 19 How, Pr. 346; Corbett t. Claflin, 17 Abb. Pr. 418. To the contrary, where he failed to ask a dismissal at the circuit under his notice: Miller v. Ring, 18 id. 244. Delay to prosecute a reference, is equally cause for dismissal. Ellsworth v. Brown, 16 Hun, 1, 56 How. 235; Mancello r. Bellrude (Cal., June, 1886), Il Pac. Rep. 502.

If defendant has consented to the postponements, he cannot charge laches upon them. McHugh , Met. St. Ry. Co., 51 Misc. 588.

FORM No. 1294. Notice of motion (or order to show cause) to dismiss action. [Move the court as in Form 815, p. 1171; or take order returnable before the court, see p. 1173; stating order desired, thus:] directing that this action be dismissed (as against said Y. Z.]80 for want of authority on the part of A. T. to bring this action, 81 and charging said A. T. personally with the costs thereof, and of this motion; and for such other relief as may be just.

[Or, for plaintiff's unreasonable neglect to proceed to trial therein against said defendant, and for such other relief as may be just, with costs of this motion.]

[Or, for unreasonable neglect to serve a copy of the complaint duly demanded, and for such other — etc., as above.]

[Or, for unreasonable neglect to serve the summons upon W. I., a necessary co-defendant, and for such other — etc., as above.]

[Or because brought without leave and for such other — etc., as above.]

FORM No. 1295.

Order dismissing action without trial [Title (court order) and recitals as in Form 820, p. 1174, of this

volume.] ORDERED, that the plaintiff's complaint herein be and the same lereby is dismissed (state ground, as thus: for want of prosecu

73 The affidavit should state where the venue is laid; that the cause was noticed for trial, and was not tried; or that it was not noticed, and that a term was held at which it might have been tried. Johnston v. Davis, 1 How. Pr. 239; Brooks v. Hunt, 3 Cai. 128; s. C., Col. & C. Cas. 444; Walsh r. Hill, 3 Johns. 446; Anony. mous, 6 Cow. 388; Roy v. Thompson, I Duer, 636; . c., 8 How. Pr. 253. What the cause of action is, is not essential to be stated (Griffing v. Thur. man, 2 How. Pr. 275), unless the motion is on the part of one of several defendants, in which case the affidavit should show the cause of action to be one on which a separate judgment might be asked.

Where the terms are continuous, and no new notice of trial is required,

the affidavit need merely state the date of issue, and the fact that younger issues have been reached for trial in regular course — though of this last fact the court will take notice.

80 Where only one of several defendants moves, the action should be dismissed only as to him. Paulson v. N. J., etc., Ř. R. Co., 54 App. Div. 190, 66 N. Y. Supp. 364.

81 See Timpson v. Mock, 105 App. Div. 299, 94 N. Y. Supp. 664. It is not enough to show that plaintiff does not desire to prosecute the action. Boston Tunnel Co. v. McKenzie, 67 Cal. 485, 8 Pac. Rep. 22. As to motion by the party misrepresented, see Brigham 1. McDowell, 19 Neb. 407, 27 N. W. Rep. 384.

tion] with costs and with dollars costs82 of this motion, and that defendant have judgment accordingly [leave to proceed may be granted, as thus] unless the plaintiffs shall, within twenty days after the service of this order on them or their attorney, serve the complaint on said Y. 2. [or, the summons on said W. X.- or, give notice of a motion that leave to bring the action be granted nunc pro tunc,83_— or, file a note of issue and serve a notice of trial for the next Trial Term of this court).

Enter: [signature of judge by initials of name and title.]

FORM No. 1296.
Order absolute after conditional dismissal.84

At a Special Term [etc., as in

Form 820, p. 1174]. [Title of cause.]

Upon the pleadings herein and on reading and filing the annexed affidavit of Y. Z., verified the day of 19 [and proof of service of due notice of this motion upon plaintiff's attorney], and after hearing Z. T., of counsel for defendant, and A. T., of counsel for plaintiff [or, no one appearing], in opposition; now, on motion of Z. T., attorney for defendant:

ORDERED [as in last Form, without the condition or leave reserved.]

FORM No. 1297.

Judgment dismissing action without trial. [Title of court and cause. ] [Briefly recite circumstances, as thus:]

This action having been commenced by the service of the summons, without a copy of the complaint, on the defendant, and the said defendant having on the day of , 19 duly served on the plaintiff's attorney a notice of appearance, and demanded a copy of the complaint, and due proof having been given to the court of such notice and demand, and that no copy of the complaint has been served (and an order having been duly

82 As to the power to give judgment for costs, on dismissing for want of prosecution, see Thiem v. Madden, 27 Hun, 371, and cases cited.

83 Leave to sue may be granted in opposition to a motion to set aside the proceedings. Thayer v. Lewis, 4 Den. 269; Walley v. Leonard, 2 How.

Pr. 282; Higgins r. Allen, 6 id. 30. Though this practice has been disapproved. Finch v. Carpenter, 5 Abb. Pr. 225. But compare volume I of this work, Forms 317, 318.

84 See Vol. I, p. 230, as to conditional orders.

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