Bailey v. Central Dry Cleaning Co.

Appellate Division of the Supreme Court of New York

Bailey v. Central Dry Cleaning Co.

4 A.D.2d 1007, 167 N.Y.S.2d 728, 1957 N.Y. App. Div. LEXIS 3956

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

DecidedNovember 15, 1957

StatusPublished

This text of 4 A.D.2d 1007 (Bailey v. Central Dry Cleaning 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

Bailey v. Central Dry Cleaning Co., 4 A.D.2d 1007, 167 N.Y.S.2d 728, 1957 N.Y. App. Div. LEXIS 3956 (N.Y. Ct. App. 1957).

Pincite

Opinion

Order reversed in the exercise of discretion, without costs of this appeal to any party, and motion denied, without costs. Memorandum: The discretion of Special Term in excusing the defaults of the plaintiffs was not providently exercised. They delayed for 28 months after receiving notices of appearance before endeavoring to serve the complaints. The defendant was justified in refusing to accept service. It is undisputed that some two months after receiving notices of appearance defendant’s counsel inquired of one of plaintiff’s attorneys and was informed that the attorney had not prepared the complaints. The excuse proffered that the file was misplaced by plaintiffs’ attorneys is inadequate to explain the delay. (Cf. Fischetti v. 242 East 19th St. Corp., 4 A D 2d 867; Moshman v. City of New York, 3 A D 2d 824.) In the exercise of a proper discretion the motion should have been denied. All concur, Vaughan, J. P., not voting. (Appeal from an order of Erie Special Term excusing the default of plaintiffs in serving their complaints and permitting service of such complaints.) Present — Vaughan, J. P., Kimball, Williams, Bastow and Goldman, JJ.

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Order reversed in the exercise of discretion, without costs of this appeal to any party, and motion denied, without costs. Memorandum: The discretion of Special Term in excusing the defaults of the plaintiffs was not providently exercised. They delayed for 28 months after receiving notices of appearance before endeavoring to serve the complaints. The defendant was justified in refusing to accept service. It is undisputed that some two months after receiving notices of appearance defendant’s counsel inquired of one of plaintiff’s attorneys and was informed that the attorney had not prepared the complaints. The excuse proffered that the file was misplaced by plaintiffs’ attorneys is inadequate to explain the delay. (Cf. Fischetti v. 242 East 19th St. Corp., 4 A D 2d 867; Moshman v. City of New York, 3 A D 2d 824.) In the exercise of a proper discretion the motion should have been denied. All concur, Vaughan, J. P., not voting. (Appeal from an order of Erie Special Term excusing the default of plaintiffs in serving their complaints and permitting service of such complaints.) Present — Vaughan, J. P., Kimball, Williams, Bastow and Goldman, JJ.

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Bluebook (online)

4 A.D.2d 1007, 167 N.Y.S.2d 728, 1957 N.Y. App. Div. LEXIS 3956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-central-dry-cleaning-co-nyappdiv-1957.