Davis v. Cunard Steam-Ship Co.

284 A.D. 1036, 135 N.Y.S.2d 665, 1954 N.Y. App. Div. LEXIS 4476

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 1954
• Status: Published

Opinion

— The plaintiff in this action is a British subject injured on a vessel coming to this country and who returned to England shortly after the accident; the action was initiated by service of an unverified complaint. Demand for bill of particulars has remained unanswered. There is no affidavit of merit submitted on behalf of the plaintiff, nor is there any statement to show that plaintiff intends to diligently prosecute the action. The failure to notice the case for trial for two and one-half years after joinder of issue required the exercise of the court’s discretion to dismiss the action for lack of prosecution under such circumstances. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted. Judgment is directed to be entered in favor of the defendant dismissing the complaint herein, with costs. Present — Peck, P. J., Cohn, Callahan, Breitel and Botein, JJ.