Opinion
April 25, 1949.
In a negligence action, in which issue was joined January 22, 1941, defendant appeals from an order of the City Court of Mount Vernon, dated September 13, 1948, granting his motion to dismiss plaintiff's complaint for lack of prosecution unless plaintiff file a note of issue on or before September 14, 1948. Order modified on the law and the facts by striking from the ordering paragraph everything following the word "granted". As thus modified, the order is affirmed, with $10 costs and disbursements to appellant. On the facts disclosed by the record, appellant was entitled to a dismissal of respondent's complaint without conditions, and it was an improvident exercise of discretion to deny appellant such relief. (Cf. Maraynes v. Orseck Boys, Inc., 274 App. Div. 1070; Ferber v. Newgold, 133 App. Div. 739; Tuttle v. Dubuque Fire Marine Ins. Co., 155 App. Div. 802. ) Nolan, P.J., Carswell, Johnston, Adel and Wenzel, JJ., concur.