Fischer v. Tushnett

256 A.D. 833, 9 N.Y.S.2d 254, 1939 N.Y. App. Div. LEXIS 5073

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1939
• Status: Published

Opinion

Appeal by defendant from so much of an order entered on his motion to dismiss the complaint for plaintiff’s unreasonable neglect to proceed in the action as granted plaintiff permission to serve and file a note of issue for the December, 1938, term of the court. Order modified by striking out everything after the word “ granted” in the first decretal paragraph and by striking out the second decretal paragraph, and as thus modified affirmed, with ten dollars Costs and disbursements to the appellant. Plaintiff failed to explain or excuse the delay of more than twenty-two months in bringing the cause on for trial, and also failed to make an adequate, or any, showing of merits. It was an improper exercise of discretion to deny the motion, in effect, by granting it conditionally. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.