Friar v. Tobin

Appellate Division of the Supreme Court of New York

Friar v. Tobin

256 A.D. 949, 11 N.Y.S.2d 234, 1939 N.Y. App. Div. LEXIS 5592

Appellate Division of the Supreme Court of the State of New York·Decided February 28, 1939·Published

Opinion

Order granting, on condition, defendants’ motion to dismiss the complaint for lack of prosecution modified by striking therefrom all of the ordering paragraph [950]*950after the word “ granted,” and, as so modified, affirmed, with ten dollars costs and disbursements to appellants. Assuming, but not deciding, that it was within the discretion of the court to condition the order with terms, in the opinion of this court, on the facts disclosed by the record, such discretion should not have been exercised in favor of the plaintiff. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.

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Order granting, on condition, defendants’ motion to dismiss the complaint for lack of prosecution modified by striking therefrom all of the ordering paragraph [950]*950after the word “ granted,” and, as so modified, affirmed, with ten dollars costs and disbursements to appellants. Assuming, but not deciding, that it was within the discretion of the court to condition the order with terms, in the opinion of this court, on the facts disclosed by the record, such discretion should not have been exercised in favor of the plaintiff. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.

Friar v. Tobin, 256 A.D. 949, 11 N.Y.S.2d 234, 1939 N.Y. App. Div. LEXIS 5592 (N.Y. Ct. App. 1939).

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