Opinion
May, 1927.
Order dismissing action for failure to prosecute reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. In our opinion there was no mistrial of this case. When the decision and judgment were inadvertently signed by the trial justice, and the decision inadvertently filed with the county clerk, and this court held that they should be returned to the trial justice by the clerk for such further proceedings as might be proper, the case was left with the trial justice for decision with the same effect as though no decision or judgment had been made, and it is for the trial justice to determine the case upon the evidence before him. Either party, of course, may move for a new trial under section 442 of the Civil Practice Act upon the ground that the decision has not been filed within the sixty days allowed by that section. Kelly, P.J., Young, Kapper, Lazansky and Hagarty, JJ., concur.