Salvaggio v. California Packing Co.

12 A.D.2d 557, 206 N.Y.S.2d 981, 1960 N.Y. App. Div. LEXIS 7257

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1960
• Status: Published

Opinion

Appeal from an order of the Troy City Court denying defendants’ motion to dismiss the action for failure to prosecute. The action herein was commenced in the Troy City Court on or about September 24, 1954, an answer served and issue joined October 14, 1954. The case was adjourned on several occasions but since December, 1959, no action has been taken with reference to its disposition. The plaintiffs’ attorney, in his answering affidavit, stated that as the result of a fire which damaged his law office the file was misplaced and was only discovered after a search upon receipt of the motion papers and further stated that the plaintiffs had a good and substantial cause of action. We are always reluctant to interfere with the discretionary order of another court unless we are satisfied that there was an abuse of such discretionary power. The trial court apparently was satisfied with the excuse offered by the plaintiffs — unusual facts — and was therefore justified in denying the motion but did so only on condition that the plaintiffs within 15 days apply for a day certain for trial. Order unanimously affirmed, with $10 costs.