Benjamin v. Chock Full of Nuts, Inc.

Appellate Division of the Supreme Court of New York

Benjamin v. Chock Full of Nuts, Inc.

18 A.D.2d 906, 237 N.Y.S.2d 986, 1963 N.Y. App. Div. LEXIS 4323

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

DecidedFebruary 21, 1963

StatusPublished

This text of 18 A.D.2d 906 (Benjamin v. Chock Full of Nuts, Inc.) 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

Benjamin v. Chock Full of Nuts, Inc., 18 A.D.2d 906, 237 N.Y.S.2d 986, 1963 N.Y. App. Div. LEXIS 4323 (N.Y. Ct. App. 1963).

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Opinion

Order, entered on June 28, 1962, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant. Present j counsel states that former counsel of record was erroneously given the impression that the note of issue had been filed during the time of his illness, and advances as a further explanation the failure of the plaintiff to deposit the necessary filing fee for a note of issue. These are insufficient excuses to| justify a failure to diligently prosecute for 18 months after issue was joined. Inadvertence under such circumstances has been held to be an inadequate excuse (Goldfarb v. Mallin, 3 A D 2d 735). Moreover, if plaintiff was unable to advance the filing fee the remedy was to apply to sue as a poor person rather than delay the prosecution of the action. (Granich v. Stolovitz, 270 App. Div. 899; Tuttle v. Dubuque Fire & Marine Ins. Co., 155 App. Div. 802; Kachel v. Stutz, 137 App. Div. 199.) Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.

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Order, entered on June 28, 1962, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant. Present j counsel states that former counsel of record was erroneously given the impression that the note of issue had been filed during the time of his illness, and advances as a further explanation the failure of the plaintiff to deposit the necessary filing fee for a note of issue. These are insufficient excuses to| justify a failure to diligently prosecute for 18 months after issue was joined. Inadvertence under such circumstances has been held to be an inadequate excuse (Goldfarb v. Mallin, 3 A D 2d 735). Moreover, if plaintiff was unable to advance the filing fee the remedy was to apply to sue as a poor person rather than delay the prosecution of the action. (Granich v. Stolovitz, 270 App. Div. 899; Tuttle v. Dubuque Fire & Marine Ins. Co., 155 App. Div. 802; Kachel v. Stutz, 137 App. Div. 199.) Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

18 A.D.2d 906, 237 N.Y.S.2d 986, 1963 N.Y. App. Div. LEXIS 4323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-v-chock-full-of-nuts-inc-nyappdiv-1963.

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