Brassner Mfg. Co. v. Consolidated Edison Co. of New York, Inc.

1 A.D.2d 840, 148 N.Y.S.2d 782, 1956 N.Y. App. Div. LEXIS 6327

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1956
• Status: Published

Opinion

In an action to recover damages allegedly sustained by reason of the careless and improper manner in which appellant converted the glass ovens of respondent to natural gas, the appeal is from an order granting the motion of appellant to dismiss the complaint for lack of prosecution, unless the ease be placed on the calendar for the next available term. Order modified" by striking from the ordering paragraph everything following the word “ granted ”, and as thus modified, affirmed, with $10 costs and disbursements to appellant. Respondent failed to present facts showing any reasonable excuse for its delay of some two years after joinder of issue in bringing the cause on for trial, or to make an adequate, if any, showing of merits. It was an improper exercise of discretion to deny the motion, in effect, by granting it conditionally (Fischer v. Tushnett, 256 App. Div. 833; Giovannucci v. Brooklyn & Richmond Ferry Co., 278 App. Div. 861; Lange v. Bagish, 285 App. Div. 833; Mancino v. City of New York, 1 A D 2d 830), even though respondent filed and served a note of issue after the notice of motion to dismiss had been served (Lange v. Bagish, supra). Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.