Evans v. Beardsley , 159 N.Y.S. 158 ( 1916 )

GUY, J.

The proof herein shows that the trial of the action was not unreasonably delayed by the plaintiff, but, on the contrary, was adjourned from time to time at the instance of the defendant, until the court refused to grant further adjournments and marked the case reserved generally, and that the motion to dismiss for want of prosecution was made as the result of and immediately following plaintiff’s request that defendant stipulate to restore the case to the trial calendar for trial at an early date.

Under the circumstances, we are of the opinion that the motion to dismiss should not have been granted, and that plaintiff’s motion to restore the case to the trial calendar should have been granted.

Judgment and orders, therefore, must be reversed, and new trial ordered, without costs of appeal to either party. All concur.