Elsters v. Yudin

Appellate Terms of the Supreme Court of New York

Elsters v. Yudin

15 Misc. 2d 983, 187 N.Y.S.2d 256, 1958 N.Y. Misc. LEXIS 2611

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 1, 1958

StatusPublished

This text of 15 Misc. 2d 983 (Elsters v. Yudin) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elsters v. Yudin, 15 Misc. 2d 983, 187 N.Y.S.2d 256, 1958 N.Y. Misc. LEXIS 2611 (N.Y. Ct. App. 1958).

Pincite

Opinion

Per Curiam.

Plaintiffs failed to present any valid reason or excuse for their delay of more than 36 months after joinder of issue in bringing the cause on for trial. In the circumstances, it was an improper exercise of discretion to deny defendant’s motion to dismiss the action unconditionally for lack of prosecution (Johnson v. Moody's Investors Serv., 285 App. Div. 966; Brassner Mfg. Co. v. Consolidated Edison Co., 1 A D 2d 840; Hardware Mut. Cas. Co. v. Rosenberg, 3 A D 2d 988; Fischer v. Tushnett, 256 App. Div. 833; Birch v. Wolper, 1 A D 2d 1028; Trapani v. Samuels, 3 A D 2d 861; Rothman v. Skernick, 15 Misc 2d 962 [App. Term, 2d Dept.]).

The order should be unanimously modified by deleting therefrom the words “ unless the plaintiffs notice the case for trial on or before February 17, 1958 ” and, as so modified, order affirmed, with $10 costs and taxable disbursements to the defendant.

Concur — Pette, Hart and Brown, JJ.

Order modified, etc.

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Per Curiam.

Plaintiffs failed to present any valid reason or excuse for their delay of more than 36 months after joinder of issue in bringing the cause on for trial. In the circumstances, it was an improper exercise of discretion to deny defendant’s motion to dismiss the action unconditionally for lack of prosecution (Johnson v. Moody's Investors Serv., 285 App. Div. 966; Brassner Mfg. Co. v. Consolidated Edison Co., 1 A D 2d 840; Hardware Mut. Cas. Co. v. Rosenberg, 3 A D 2d 988; Fischer v. Tushnett, 256 App. Div. 833; Birch v. Wolper, 1 A D 2d 1028; Trapani v. Samuels, 3 A D 2d 861; Rothman v. Skernick, 15 Misc 2d 962 [App. Term, 2d Dept.]).

The order should be unanimously modified by deleting therefrom the words “ unless the plaintiffs notice the case for trial on or before February 17, 1958 ” and, as so modified, order affirmed, with $10 costs and taxable disbursements to the defendant.

Concur — Pette, Hart and Brown, JJ.

Order modified, etc.

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Bluebook (online)

15 Misc. 2d 983, 187 N.Y.S.2d 256, 1958 N.Y. Misc. LEXIS 2611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elsters-v-yudin-nyappterm-1958.

Opinion

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