Klenotic v. Brush

278 A.D. 772, 103 N.Y.S.2d 767, 1951 N.Y. App. Div. LEXIS 4698

Opinion

Order modified on the law and the facts by striking from the ordering paragraph everything following the' word “default”. As thus modified, the order is affirmed, with $10 costs and disbursements to appellants. More than four years elapsed from the time appellants served their notice of appearance and demand for a copy of the complaint to. the date of the motion to dismiss. Respondents defaulted on the return of the motion. In the absence of explanation for the delay and default, it was an improvident exercise of discretion to make the failure of respondents to serve a complaint within twenty days a condition of granting the motion. (McIntyre v. Branner, 214 App. Div. 145; Fischer V. Tushnett, 256 App. Div. 833; Fletcher v. Goodrich Go., 276 App. Div. 844.) Carswell, Acting P. J., Johnston, Sneed, Wenzel and MaeCrate, JJ., concur. [See post, p. 841.]