Seymour v. Lake Shore & Michigan Southern Railway Co.
Appellate Division of the Supreme Court of the State of New York
Appeal from special term, New York county. Action by Norman Seymour, ancillary administrator of the estate of James Gassaway, deceased, against the Lake Shore & Michigan Southern Railway Company. From an order denying a motion to dismiss the complaint, the defendant appeals.
1Opinion of the CourtBarrett, J.
The defendant made out a prima facie case of unreasonable neglect to prosecute. The action remained at issue for nearly six years, without any step having been taken by the plaintiff to bring it to trial. Unreasonable neglect having thus been shown, the burden of excusing the neglect was thrown upon the plaintiff. Under rule 36 of the general rules of practice, the defendant was authorized to move for a dismissal at any time after younger issues had been tried in their regular order. The rule thus, in substance, provides that unreasonable neglect, within section 822 of the Code of Civil…
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