This.action was commenced on the l5th of November, 1906, and issue was joined tbe 12th of December, 1906. The case was never placed on the calendar and issues of a later date have been tried. The action is to recover $10,000 damages caused by tbe death of the plaintiff’s intestate. Tbe only excuse offered was that tbe plaintiff’s attorney found an entry on bis register dated August 29,1906, that bis managing clerk had directed his assistant not to place tbe case on the calendar and the matter was not called to bis attention. No affidavit of tbe plaintiff was presented and nothing to show that this direction was not the result of a determination' by the plaintiff to abandon tbe action or that tbe delay was not tbe voluntary act of the plaintiff. The defendant having brought itself within tbe provisions of the Code of Civil Procedure (§ 822) and the General Rules of Practice (Rule 36) which justify the court in dismissing the complaint for failure *279to prosecute where younger issues have been tried, and ho excuse having been offered for the delay, the motion should have been granted.
The order is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.