Macdonnell v. Press Publishing Co.

This is an action for an alleged libel published December 1,1908. The case was tried March 21 and 22, 1911, and a verdict directed for the defendant. An appeal was taken to this court and the judgment was reversed and a new trial ordered in May, 1912. (150 App. Div. 918.) *873The moving affidavit avers that since the entering of the order granting a new trial plaintiff has taken no steps whatever to place this case upon the trial calendar, although under the rules and practice the ease could have been immediately placed upon the calendar and pressed to trial, and that junior issues have been tried. The motion was made on a notice dated November 19, 1913. It has been many times held that the burden is upon the party moved against to establish sufficient and reasonable grounds for his delay. We are of the opinion that the plaintiff has not sustained that burden. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements to the appellant, and the motion to dismiss the complaint granted, with costs. Present— Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ. Order reversed, with ten dollars costs and disbursements, and motion to dismiss complaint granted, with costs.