Opinion
December 17, 1964
Order entered October 22, 1964, denying plaintiffs' motion to vacate a dismissal of the complaint for failure to proceed to trial, unanimously reversed on the law, on the facts, and, in the exercise of discretion, with $75 costs and disbursements to appellants, the motion to vacate the dismissal is granted, and the action is ordered restored to the Ready Personal Injury Jury Calendar, Supreme Court, Bronx County. It was an improvident exercise of discretion to dismiss the complaint when counsel for plaintiffs sought an adjournment of the trial to the next court day upon the grounds of illness. On the record, there is no basis for finding that the illness was feigned. In the circumstances, an adjournment of the cause was properly indicated. In vacating the dismissal, we in no way indicate our views as to the ultimate merit of plaintiffs' cause. The resolution of that question must await a trial Settle order on notice.
Concur — Botein, P.J., Breitel, Valente, Stevens and Eager, JJ.