Bryon v. Safir

The action was brought to recover damages for injuries alleged to have been sustained by the plaintiff through the negligence of the defendants. Issue was joined June 2, 1908. The case appeared on the call calendar in February, 1911, and was reached for trial March 13, 1911. The court declared a mistrial and permitted the withdrawal of a juror. This motion for dismissal of the complaint for failure to prosecute was made September 28, 1911, upon the ground that nothing had been done by the plaintiff since March 13, 1911. It appears that the plaintiff, while walking on the street, was struck on the head by a hammer which he alleges was dropped by an employee of the defendants. Since the mistrial there has been a change of attorneys and the appellant asserts that he is ready and anxious to go to trial. We think that under the circumstances he should have an opportunity to try his case. As the summer vacation intervened, the delay, from the middle of March, when the first *909trial was had, until the following October, was not such as to compel the granting of the motion to dismiss. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Miller, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten doEars costs.