Opinion
November 28, 1949.
Appeal from Supreme Court, Orange County.
The facts are unusual. While it is true that this action has been pending for over eighteen years, it appears conclusively that at least for ten years the delay in bringing the matter to trial was occasioned by the repeated representations of the member of the firm of the defendant's attorneys having the matter in charge that the case would be settled, and even promising to prepare a form of judgment against the defendant, to which it would consent. At the end of ten years, this attorney (now deceased) having been elevated to the bench, the firm of attorneys representing the defendant was dissolved. There was, however, no substitution of attorneys for the defendant until April of 1949, after the plaintiffs had made their motion, which resulted in one of the orders appealed from. Under the circumstances here disclosed, it would be neither just nor equitable to permit the defendant to take advantage of the delay brought about to the greatest extent by its own attorneys. It does not appear that the defendant has been prejudiced. The plaintiffs' motion should have been granted and defendant's motion denied. Orders reversed, on the law and the facts, without costs, plaintiffs' motion granted, and defendant's motion denied, without costs. The supplemental and amended summons and the amended complaint should be served within ten days from the entry of an order hereon. Johnston, Adel and Wenzel, JJ., concur; Nolan, P.J., and Carswell, J., dissent and vote to affirm the orders on the ground that the Special Term's disposition of the motions was not an abuse of discretion.