[1] This action was commenced and issue joined' in June, 1904. It was noticed for trial for December, 1904, and a note of issue filed, and the case received a number on the calendar. Up to the time this motion was made, the case never appeared upon any call or day calendar of the City Court. In March, 1909, a motion to dismiss for failure to prosecute was made; but this motion seems to-have been abandoned. Junior issues have been tried, and the case presents an unusual degree of loches on the part of the plaintiff, which is not excused by anything set forth in his affidavits. After noticing the case for trial, plaintiff took no further steps for about seven years, when defendant’s present attorneys were substituted and this motion was made. That plaintiff’s former attorney was negligent is no excuse.
[2] Defendant’s present attorneys appeared on the return day of the motion, which had been served upon plaintiff personally, his former attorney having been suspended from practice; but the defendant’s present attorney made no objection that section 65 of the Code had not been complied with, and therefore cannot raise that question now. The motion to dismiss should have been granted. The case of Willner v. Mink, 61 Mise. Rep. 73, 113 N. Y. Supp. 31, has no application.
Order reversed, with $10 costs and disbursements, and motion granted.