Seebach v. Fenkart

These cases were placed on the calendar and notes of issue filed soon after issue was joined. They appeared for the first time on the calendar for trial on January 11, 1909. On January 9, 1909, at the request of a duly authorized representative of defendant’s attorney, they were marked “Reserved generally,” pending the determination of certain" bankruptcy proceedings; defendant’s attorney stating that he would consent to their being restored to the day calendar on the termination of such proceedings. The bankruptcy *579proceedings terminated in March, 1909; but plaintiff had no knowledge of that fact until 1911. He "then asked the consent of defendant’s attorney to restore them to the day calendar, which request was refused, and defendant moved to dismiss the cases for want of prosecution.

New notes of issue were served each year by plaintiff’s attorney, and there does not appear to have been any loches on his part. Defendant was as responsible as the plaintiff for the delay in restoring the cases to the day calendar. Where a defendant consents that a cause be reserved generally, he cannot thereafter have the case dismissed for failure to prosecute until after it has been restored to the call or day calendar. McHugh v. Met. St. Ry. Co., 51 Misc. Rep. 588, 101 N. Y. Supp. 95; Severin v. Hopper, 37 Misc. Rep. 863, 76 N. Y. Supp. 976. The orders must be reversed.

Orders reversed, with $10 costs and disbursements in each case, and motions denied.