Opinion
February 13, 1973
In a negligence action to recover damages for personal injuries, plaintiff appeals (1) from an order of the Supreme Court, Queens County, dated November 2, 1970, which denied his motion to vacate the dismissal of the action and to restore the action to the trial calendar and, (2) as limited by his brief, from so much of a further order of the same court, dated February 23, 1971, as, upon reargument, adhered to the original decision. Appeal from order dated November 2, 1970, dismissed as academic, without costs. That order was superseded by the order dated February 23, 1971. Order dated February 23, 1971 reversed insofar as appealed from, and plaintiff's motion to vacate the dismissal of the action and to restore the action to the trial calendar granted, all on condition that plaintiff's attorneys personally pay $50 costs to each respondent appearing separately and filing a separate brief, and without costs otherwise. In our opinion it was an improvident exercise of discretion to refuse to vacate the dismissal of the action on the terms hereinabove mentioned. Hopkins, Acting P.J., Munder, Latham, Gulotta and Benjamin, JJ., concur.