Grant v. Durham

272 A.D.2d 821

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1947
• Status: Published

Opinion

Order granting plaintiff's motion to vacate the dismissal of her complaint and to restore the action to the calendar for trial, reversed on the law and the facts, without costs, and the motion denied, without costs. The case was marked “Ready" on March 1, 1940, by both sides. It was marked off on plaintiff’s request on March 9, 1940. It was dismissed a year later, on March 8, 1941. Plaintiff’s attorney did not, so he says, enter the armed forces for active duty until “several months” after February 1, 1941. He was available for over fourteen or fifteen months after the case was reached. He was available for months after it was dismissed on March 8, 1941. The failure seasonably to prosecute the action was not due to later service of the attorney in the army. Recourse to such service may not be had by plaintiff to excuse her laches, especially when it indisputably appears that the defendant has lost the benefit in the intervening six years (preceding the making of this motion), by death or otherwise, of testimony of material witnesses. The granting of plaintiff’» motion was an improvident exercise of discretion. Hagarty, Acting P. J., Carswell, Johnston, Nolan and Sneed, JJ., concur.