¶1(concurring.) Unreasonable neglect to proceed is a ground for dismissal of an action. Code Civil Proc. § 822. This section is but expressive of the policy of the law that one should not be permitted to sleep on his rights. Here the attachment was issued in 1889, and since that time plaintiff has done nothing towards perfecting his judgment, though for more than four years he could have done so. This shows gross loches, and, as plaintiff should not be allowed to tie up property indefinitely, I think upon this, as well as upon the ground assigned by the presiding justice, the attachment should be vacated.
25 N.Y.S. 875
Young v. Fowler
Decided November 17, 1893
New York Supreme Court · decided 1893-11-17
<p>1. Summons—Affidavit fob Publication—Nonresidence.</p> <p>An affidavit for an order of publication is insufficient when it merely states that, “upon a summons, verified complaint, and affidavit,” plaintiff obtained a warrant of attachment against defendant on the ground of nonresidence, without any direct averment as to defendant’s nonresidence, and without any showing as to the character of the papers on which the attachment was granted, or that there was any sufficient ■ proof in such papers as to defendant’s nonresidence.</p> <p>3. Same—Absence from State.</p> <p>An affidavit for an order of publication is insufficient which merely states that defendant is of full age, and cannot be found with due diligence within the state, and that plaintiff would be unable with due diligence to serve the summons on him in the state, without any allegation as to defendant’s nonresidence, or that his absence from the state is with intent to defraud creditors or to avoid the service of summons.</p>
Reversed · Decided 1893-11-17