Opinion
May 24, 1949.
Appeal from Supreme Court, New York County.
The complaint should be dismissed for failure to prosecute; no adequate explanation was offered to excuse the long delay. The counterclaim is barred by the Statute of Limitations. Moreover, it is extremely doubtful whether, under the permit or so-called "franchise" agreement the city had any claim for rental after the holder of the permit, personal in character, discontinued the use of the tunnel, removed from the premises, sold the premises to another, and concededly notified the city to that effect.
The order granting plaintiff's motion for summary judgment and the judgment entered thereon should be reversed and the motion denied; the order denying defendant's motion to dismiss for failure to prosecute should be reversed and the motion granted; the order denying defendant's motion for summary judgment should be affirmed, all of the foregoing to be without costs.
Peck, P.J., Dore, Cohn, Callahan and Shientag, JJ., concur.
Order granting plaintiff's motion for summary judgment and the judgment entered thereon unanimously reversed and the motion denied; order denying defendant's motion to dismiss the complaint for failure to prosecute unanimously reversed and the motion granted; order denying defendant's motion for summary judgment unanimously affirmed. Settle order on notice.