Opinion
March 28, 1966
In a negligence action by a home builder to recover damages resulting from an allegedly incorrect boring report, plaintiff appeals from an order of the Supreme Court, Kings County, entered June 21, 1965, which denied its motion to vacate the dismissal of the action because of plaintiff's failure to appear for trial and to restore the action to the Trial Term Calendar. Order reversed, without costs, and motion granted, on condition that plaintiff pay defendants $100 plus defendants' necessary disbursements on the appeal. In our opinion, under the circumstances of this case, it was an improvident exercise of discretion to determine the motion unconditionally against plaintiff. Ughetta, Acting P.J., Christ, Brennan, Hill and Hopkins, JJ., concur.