Barnard v. Postle

¶1Defendant appeals from an order of the Supreme Court which denied a motion to dismiss the complaint pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice on the ground of failure to diligently prosecute the action. Plaintiff seeks to recover $2,139.12 for work, labor and services which he alleges were performed pursuant to an agreement with the defendant. The summons was served on January 30, 1956. The defendant appeared on February 14, 1956. The complaint and a note of issue were mailed to defendant’s attorney on September 23, 1958. Defendant’s attorney accepted the service but reserved the right to move with respect to the pleadings. It is a fair inference that the rather loose practice followed was by acquiescence between the attorneys. It was not until the plaintiff began to actively press the action for trial that the motion to dismiss was made. By the express terms of section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice the court is given discretion in dealing with a motion to dismiss. No prejudice to the defendant appears and we think that the court at Special Term providently exercised its discretion in denying the motion with permission to renew if the action was not tried expeditiously. Order unanimously affirmed, without costs.