Excepting averment, not even upon hearsay, of an “ omission * * * no doubt due to an oversight bn his part” of a lawyer’s clerk—from wrhom comes not a word—- nothing is offered to gainsay the evidence, over date of September 11, 1906, that this issue was joined June 23, 1903, and that younger issues of a similar character had been tried, evidence bringing the cause so directly, within Buie 36 of the General Buies of Practice, that the motion to dismiss it could be denied only upon its being made to appear that the delay was not unreasonable. Sufficient thus appeared to sustain the action of the learned justice at Special Term, without regard to the special rule of the City Court, upon which stress is laid unduly and which, at most, is an understanding inter pares and not a special, local mandate issued other whence to officials to dis*523respect the orders of the justices ordained under the Con stitution of the State. The plaintiff may not complain of the fate of his cause. If he had a cause of action he should have seen it tried by the attorney first retained or some other for he had it pending in a court the condition of whose calendars was made well known by an abortive commission, he much indurated course of accepting adventitious excuses o conform to statutory procedure, once confirmed by custom, as brought into fashion a certain frivolity of practice, ex-ensive to litigants, costing the county large sums of money nd squandering time supposedly valuable, besides at times otoriously covering objects not allowable.
The order should be affirmed.
Order reversed, without costs, but with disbursements to laintiff and case restored to the calendar of the City Court.