An automobile accident occurred on July 25th, 1926, on the road to Monticello, New York. The plaintiff Ered Burrows was the owner of one of the cars and defendant, Ida Juffe, was the owner of the other. Ered Burrows turned over the matter of bringing suit to a New York lawyer named Cohen. Irving Simon, a New Jersey attorney, was intrusted with the matter by Cohen. An action was commenced in the Supreme Court. The defendant filed a counter-claim. The plaintiffs’ case was not moved for two years, although noticed for trial for several terms. The defendant finally noticed the case for trial on her counter-claim at the May term, 1928, of the Union Circuit. The case was carried over to the October term. On November 26th, 1928, counsel for defendant notified the plaintiffs’ attorney that the case would be called on November 27th. It was reached for trial on December 5th, 1928, and judgment was entered on the verdict of a jury.
*1112The proofs do not show surprise. They show that the plaintiff did nothing about his case beyond consulting Cohen, •and turning the matter over to him. There is no deposition from Cohen, Simon or the plaintiffs other than Burrows. Mere failure to pay attention to a law suit is no basis for claiming surprise.
The rule will be discharged.