Opinion
February 10, 1959
Appeal from the City Court of the City of New York, Kings County MILTON M. WECHT, J.
Bernard Helfenstein and Irwin B. Polinsky for appellant.
Alphonso V. Guardion and Bernard P. McSherry for respondent.
Plaintiff failed to present any valid reason or excuse for his delay of more than 27 months after joinder of issue, in bringing the cause on for trial. In the circumstances, it was error to deny defendant's motion to dismiss the action unconditionally for lack of prosecution. ( Johnson v. Moody's Investors Service, 285 App. Div. 966; Brassner Mfg. Co. v. Consolidated Edison Co., 1 A.D.2d 840; Hardware Mut. Cas. Co. v. Rosenberg, 3 A.D.2d 988; Fischer v. Tushnett, 256 App. Div. 833; Birch v. Wolper, 1 A.D.2d 1028; Trapani v. Samuels, 3 A.D.2d 861; Rothman v. Skernick, 15 Misc.2d 962.)
The order should be unanimously modified by deleting therefrom the words "Unless the plaintiff files a note of issue on or before September 8, 1958" and, as so modified, order affirmed, with $10 costs and taxable disbursements to the defendant.
Concur — PETTE, HART and DI GIOVANNA, JJ.
Order modified, etc.