A. R. Hyde & Sons v. Roller Derby Skate Co.

Appellate Division of the Supreme Court of New York

A. R. Hyde & Sons v. Roller Derby Skate Co.

1 A.D.2d 942, 150 N.Y.S.2d 325, 1956 N.Y. App. Div. LEXIS 5747

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 17, 1956

StatusPublished

This text of 1 A.D.2d 942 (A. R. Hyde & Sons v. Roller Derby Skate Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

A. R. Hyde & Sons v. Roller Derby Skate Co., 1 A.D.2d 942, 150 N.Y.S.2d 325, 1956 N.Y. App. Div. LEXIS 5747 (N.Y. Ct. App. 1956).

Pincite

Opinion

Issue was joined on January 13, 1955, one month after commencement by plaintiff, a Massachusetts corporation, not licensed to do business in New York, of an action to recover the balance due on goods sold and delivered, wherein defenses alleged, among others, were that plaintiff was not the real party in interest; payment; accounts stated and another action pending between the parties in Illinois involving the same subject matter. Special Term’s dismissal of the complaint for failure to prosecute was conditioned on plaintiff’s service and filing of a note of issue for the following March Term and payment of statutory fees. This court has maintained a firm attitude against unwarranted delay in prosecuting actions. (Cooper v. Schnabolk, 283 App. Div. 937; Davis v. Cunard S. S. Co., 284 App. Div. 1036.) A perfunctory affidavit in opposition to the motion to dismiss, citing a clerk’s inadvertence as the reason for the delay, not accompanied by an affidavit of merit, does not satisfy the requirement of rule 156 of the Rules of Civil Practice. Order unanimously modified by directing that the complaint be dismissed unconditionally, with costs and, as so modified, affirmed, with $20 costs and disbursements to the appellant. Concur — Peck, P. J., Breitel, Botein, Rabin and Cox, JJ.

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Issue was joined on January 13, 1955, one month after commencement by plaintiff, a Massachusetts corporation, not licensed to do business in New York, of an action to recover the balance due on goods sold and delivered, wherein defenses alleged, among others, were that plaintiff was not the real party in interest; payment; accounts stated and another action pending between the parties in Illinois involving the same subject matter. Special Term’s dismissal of the complaint for failure to prosecute was conditioned on plaintiff’s service and filing of a note of issue for the following March Term and payment of statutory fees. This court has maintained a firm attitude against unwarranted delay in prosecuting actions. (Cooper v. Schnabolk, 283 App. Div. 937; Davis v. Cunard S. S. Co., 284 App. Div. 1036.) A perfunctory affidavit in opposition to the motion to dismiss, citing a clerk’s inadvertence as the reason for the delay, not accompanied by an affidavit of merit, does not satisfy the requirement of rule 156 of the Rules of Civil Practice. Order unanimously modified by directing that the complaint be dismissed unconditionally, with costs and, as so modified, affirmed, with $20 costs and disbursements to the appellant. Concur — Peck, P. J., Breitel, Botein, Rabin and Cox, JJ.

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Bluebook (online)

1 A.D.2d 942, 150 N.Y.S.2d 325, 1956 N.Y. App. Div. LEXIS 5747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-r-hyde-sons-v-roller-derby-skate-co-nyappdiv-1956.

Opinion

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