This is an appeal from an order denying defendant’s motion to dismiss the complaint for neglect to prosecute. The affidavit upon which the motion was made stated that issues of .a later date had been reached, in their regular order upon the calendar, and disposed of, and that the plaintiff had never served a notice of trial or placed the cause upon the calendar. ¡No answering affidavits appear; and the question here presented is as to whether, under section 822 of the Code and rule 36 of the General Rules of Practice, the court could, in the exercise of its proper discretion, deny -the motion, in the absence of any evidence tending to show that the neglect of the plaintiff to bring the action to trial had not been unreasonable. While under the provisions of the Code and the rule in question the granting of such motion is entirely discretionary, such discretion is a legal discretion; and, where no excuse for the neglect is shown, the order "of dismissal should be granted.
Order reversed, with ten dollars costs and disbursements; and motion granted, dismissing the complaint with ten dollars costs.
Present: Giegerich, Lehman and Pendleton, J J.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten ‘dollars costs. ■