By the 23 d rule of this court, adopted in 1849, it was provided that when an issue of fact should be joined in any action, and the plaintiff therein should fail to bring the same to trial, according to the course and practice of the court, the defendant might move for the dismissal of the complaint, with costs. This rule continued in force until the revision, which took place in 1854, when it was abolished.
*360It was thought that, since the Code had authorized a defendant, as well as the plaintiff, to notice the issue for trial, the practice of moving to dismiss the complaint for not bringing the cause to trial, in analogy to the motion for judgment as in case of nonsuit under the common-law practice, was both unnecessary and inconvenient.'
The practice, as it now exists, is substantially the same as it ‘was in the court of chancery. By the last clause of the 274th section of the Code, a defendant may move for a dismissal of the complaint on the ground of unreasonable neglect in the prosecution of the suit; but when the plaintiff has proceeded to get the cause in readiness for trial, the proper mode of proceeding on the part of the defendant, if he would expedite its determination, is to set it down for trial upon his own notice. Then, if the plaintiff does not choose to try it, he may move for a dismissal.
This motion must be denied, but without costs.