Barnard v. Postle

Appellate Division of the Supreme Court of New York

Barnard v. Postle

12 A.D.2d 670, 207 N.Y.S.2d 778, 1960 N.Y. App. Div. LEXIS 6728

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

DecidedDecember 2, 1960

StatusPublished

This text of 12 A.D.2d 670 (Barnard v. Postle) 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

Barnard v. Postle, 12 A.D.2d 670, 207 N.Y.S.2d 778, 1960 N.Y. App. Div. LEXIS 6728 (N.Y. Ct. App. 1960).

Pincite

Opinion

Defendant appeals from an order of the Supreme Court which denied a motion to dismiss the complaint pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice on the ground of failure to diligently prosecute the action. Plaintiff seeks to recover $2,139.12 for work, labor and services which he alleges were performed pursuant to an agreement with the defendant. The summons was served on January 30, 1956. The defendant appeared on February 14, 1956. The complaint and a note of issue were mailed to defendant’s attorney on September 23, 1958. Defendant’s attorney accepted the service but reserved the right to move with respect to the pleadings. It is a fair inference that the rather loose practice followed was by acquiescence between the attorneys. It was not until the plaintiff began to actively press the action for trial that the motion to dismiss was made. By the express terms of section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice the court is given discretion in dealing with a motion to dismiss. No prejudice to the defendant appears and we think that the court at Special Term providently exercised its discretion in denying the motion with permission to renew if the action was not tried expeditiously. Order unanimously affirmed, without costs.

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Defendant appeals from an order of the Supreme Court which denied a motion to dismiss the complaint pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice on the ground of failure to diligently prosecute the action. Plaintiff seeks to recover $2,139.12 for work, labor and services which he alleges were performed pursuant to an agreement with the defendant. The summons was served on January 30, 1956. The defendant appeared on February 14, 1956. The complaint and a note of issue were mailed to defendant’s attorney on September 23, 1958. Defendant’s attorney accepted the service but reserved the right to move with respect to the pleadings. It is a fair inference that the rather loose practice followed was by acquiescence between the attorneys. It was not until the plaintiff began to actively press the action for trial that the motion to dismiss was made. By the express terms of section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice the court is given discretion in dealing with a motion to dismiss. No prejudice to the defendant appears and we think that the court at Special Term providently exercised its discretion in denying the motion with permission to renew if the action was not tried expeditiously. Order unanimously affirmed, without costs.

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Bluebook (online)

12 A.D.2d 670, 207 N.Y.S.2d 778, 1960 N.Y. App. Div. LEXIS 6728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnard-v-postle-nyappdiv-1960.