(temporarily assigned) (dissenting). I am impelled to disagree with my colleagues. I would affirm the action of the trial court in dismissing with prejudice the within cause of action.
The facts are sufficiently set forth in the opinion of the-majority. Although the trial court based its action on five separate grounds, it is my conclusion that its “dismissal with prejudice” should be sustained on the ground that the plaintiff failed to prosecute his cause of action for more than six months within the purview of B. B. 4:42-2(a).
The majority indicate that the trial court was motivated in its action because of plaintiff’s prior contemptuous conduct. In applications of this type it is necessary for the trial court to enter into the nature of the matter and all the factors, circumstances and situations of the parties. Who, better than the trial court, would be in a position to understand and appraise a litigant’s tactics in the prosecution of *351liis cause of action? The test is not what we would do under the same circumstances, but rather whether the action of the trial court was arbitrary, capricious and a manifest denial of justice as without basis in law or fact. As was stated in Hartpence v. Grouleff, 15 N. J. 545, 549 (1954), which was an application for a new trial in the Law Division in an automobile negligence suit: “His action should not be disturbed unless it clearly and unequivocally appears there was a manifest denial of justice under the law.” The same reasoning applies here.
The plaintiff did nothing for more than seven months to prosecute his course of action. The record indicates that when he was advised by his accountants that they would not continue the examination and inspection of the records of the corporate defendant beyond July 1, 1957, unless they were paid, he permitted the work to stop although the accountants communicated with him several times for some indication of his intentions, even after July 1. Moreover, plaintiff never made any application to the court or sought the consent of the defendants for a stay of the consent order of January 18, 1955, until he was able financially or otherwise to continue the probe. Nor did he give the court or the defendants any indication of his intention to abandon the probe and proceed to trial on his complaint.
The plaintiff was acting as his own attorney at the time the defendants moved to dismiss. But at the time this cause of action was instituted he was represented by his nephew, a member of the bar of this State, who, although substituted by other attorneys, attended every court hearing in the matter including the argument on this appeal. The plaintiff has not been without legal advice in this matter.
On the argument for dismissal plaintiff was represented by counsel who expressly told the court the limited extent of his representation — merely to seek an adjournment to permit plaintiff to obtain other counsel. Counsel did not condition his application with any offer to proceed within a reasonable time, nor did he give the court any excuse for the plaintiff’s failure to prosecute, nor did he demonstrate *352to the court any extenuating circumstances why the plaintiff had not actively prosecuted his cause of action, nor was anything said about whether the plaintiff ever intended to proceed or not. The plaintiff had attended every other court hearing but this one. However, his nephew was in court. Under the circumstances here the action of the trial court was not an abuse of discretion, arbitrary, capricious, nor a manifest denial of justice.
The majority cite three cases as authority for reversing the trial court. Although I agree with the law expressed therein, a perusal of the facts in these eases reveal that they are inapposite here. Rather, I am persuaded that we should be guided by the principles set forth in Pagano v. Krispy Kernals, Inc., 10 N. J. Super. 588, at pages 590, 591 (Sup. Ct. Law Div. 1950) where Judge Proctor stated:
“The obvious purpose of the above rule- is to keep a plaintiff’s interest active. * * *
Defendant no less than plaintiff is entitled to the protection afforded by the rules.
It is unpleasant for the court to dismiss actions because of failure to abide by the rules, but if the rules are to have any significance they must be respected by the bar as well as the bench.”
If the defendants had not moved to dismiss, plaintiff would have been content to keep his cause of action suspended like Damocles’ sword ready to strike the defendants whenever it would serve his purpose to do so.