Kings County NyArchives Court.....Hayward, Edward Vs. Manhattan Railway Co 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 12:07 pm

Source: Reports Of Cases - New York
Written: 1889

Second Department, May Term, 1889.

EDWARD HAYWARD, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

Right to commence a new action, within one year after a reversal of a judgment 
or a dismissal of an action, under section 405 of the Code of Civil Procedure.

In an action, brought in May, 1887, to recover for injuries sustained in 
consequence of the defendant's negligence in November, 1883, the complaint 
alleged that an action for the same cause was commenced within the three years 
required by section 383 of the Code of Civil procedure; that it was brought to 
trial; that, the proof failed to support the action, and that in consequence 
thereof the plaintiff was permitted to withdraw a juror upon condition that the 
case be set down for trial on the first Monday of April, 1887, and upon the 
further condition that the plaintiff pay twenty dollars trial costs and 
disbursements upon the former trial within ten days; that the time to make this 
payment was twice extended, but as no payment was made the case was, on April 
twentieth, dismissed for "failure to pay said costs" and a final judgment was 
entered.

Held, that the plaintiff did not come within the provisions contained in section 
405 of the Code of Civil Procedure, which provides that when a judgment is 
reversed on appeal without awarding a new trial, or the action is terminated in 
any other manner than by voluntary discontinuance, a dismissal of the complaint 
from neglect to prosecute the action, or a final judgment on the minutes, the 
plaintiff may commence a new action within one year after such reversal or 
termination.

That the fact that the failure to prosecute was caused by the inability of the 
plaintiff to pay the costs awarded against him, upon the failure of his proof 
upon the trial, as a condition to his right to a further trial with additional 
proof, did not excuse the neglect to prosecute.

That the power of the court to dismiss an action for a failure to obey its 
orders was a general power inherent in courts of justice, and was expressly 
given by section 822 of the Code of Civil Procedure.

That the action was barred by the statute of limitations.

Appeal from a judgment rendered at the Kings County Circuit in favor of the 
plaintiff, which was entered in the office of the clerk of said county on the 
19th day of April, 1888; and, also, from an order denying the defendant's motion 
to set aside the verdict and for a new trial upon the minutes of the justice 
presiding at the trial, which was entered in the said clerk's office on the 23d 
day of April, 1888.

Davies, Cole & Rapallo, for the appellant.

George W. Wilson, for the respondent.

Barnard, P. J. :

This action is brought to recover for injuries suffered in consequence of the 
defendant's negligence. The injury was occasioned in November, 1883, and this 
action was commenced in May, 1887. By section 383 of the Code of Civil Procedure 
such an action is barred in three years. To meet this the complaint avers that 
an action for the same cause was commenced within the three years; that it was 
brought to trial on the 7th of March, 1887; that the proof failed to support the 
action, and, in consequence thereof, the plaintiff was permitted to withdraw a 
juror upon condition that the case be set down for trial on the first Monday of 
April, 1887, and upon the further condition that the plaintiff pay twenty 
dollars trial costs and disbursements of defendant upon the former trial within 
ten days. The time was twice extended in which to make these payments. The 
payments were never made. On the twentieth of April the case was dismissed 
for "failure to pay said costs," and final judgment was, therefore, entered. The 
costs were not paid because the plaintiff was unable to pay them. Section 405 of 
the Code provided that when a judgment is reversed on appeal without awarding a 
new trial, "or the action is terminated in any other manner than by a voluntary 
discontinuance, a dismissal of the complaint for neglect to prosecute the 
action, or a final judgment on the minutes," the plaintiff may commence a new 
action within one year after such reversal or termination. The plaintiff does 
not come within this exception. The final action was dismissed for a failure to 
prosecute. That the failure to prosecute was caused by the inability of the 
plaintiff to pay the costs awarded against him upon the failure of his proof at 
the trial, and as a condition of his right to a further trial with additional 
proof, does not destroy or excuse the neglect to prosecute. It was a refusal to 
obey the order of the court, and was voluntary, even if he had not the necessary 
money with which to pay the costs imposed as a condition of a favor granted to 
him. A dismissal for a failure to obey orders is a general power inherent to 
courts of justice. (Gross v. Clark, 87 N. Y., 272.) The power is expressly given 
by section 822 of the Code. The case is stronger than Morange v. Meigs (54 N. 
Y., 208). In that case there was a dismissal of the plaintiff's complaint for a 
refusal to go on with the trial. In the present case the plaintiff escaped a 
nonsuit on the condition that he would pay certain costs within a certain time, 
and a refusal to comply must be deemed voluntary when no application was made to 
extend the time in the court where the trial was pending, and such a failure is 
voluntary and is a failure to prosecute. (Otis v. Gray, 3 N. Y. Monthly 
Bulletin, 11; Moloughey v. Kavanagh, 4 id., 43.) We think, therefore, that the 
action was dismissed by the Court of Common Pleas in New York for neglect to 
prosecute the same, and that the statute of limitation has barred the claim.

The judgment should, therefore, be reversed and a new trial granted, costs to 
abide the event.

Pratt, J. concurred.

Judgment and order denying new trial reversed and new trial granted, costs to 
abide event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/kings/court/hayward778gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 6.7 Kb