Class Journal Co. v. Valveless Inner Tube Co. , 145 N.Y.S. 958 ( 1914 )

PAGE, J.

[1] This action has been twice tried in the City Court, and in each instance, resulted in judgment for the defendant, which judgments have been respectively reversed by this court and new trials granted. The moving affidavits upon the motion show that 18 months have elapsed since the granting of the second new trial to the plaintiff, and during that.time no steps have been taken to bring the case to trial. The Only excuse offered for this neglect is the fact that the defendant has no assets and a judgment against it would be valueless. I am unable to discover a recently reported case in which this state of facts has been passed upon. In Wheaton v. McGlade, 1 Wend. 34, it was held that the poverty of the defendant is no excuse for failure to prosecute diligently unless he has obtained a discharge under the insolvency laws. Upon principle it would seem that, if the plaintiff offers as an excuse that it considers it unprofitable to continue the action, that fact merely demonstrates that the neglect was willful and is in itself a good ground for dismissal.

[2] As to the terms upon which the motion should be granted, the court had no discretion. The action was one at law fordamages, and the defendant was absolutely entitled to costs upon a dismissal. The alternative contained in the order appealed from which allowed the plaintiff to discontinue without costs was unauthorized. Wetzler v. Silverman, 123 N. Y. Supp. 794.

The order appealed from is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.