Opinion
April 30, 1951.
In an action to recover salesman's commissions allegedly due him, plaintiff appeals from an order denying his motion for the fixation of a date for defendant's examination before trial, and for other relief. Order affirmed, with $10 costs and disbursements. There was no abuse of discretion by the Special Term in denying the motion as, upon the papers submitted, plaintiff was guilty of gross neglect and laches in the prosecution of his action. We are advised that after the instant order was made, plaintiff's motion to restore the cause to the calendar for trial was granted and defendant's cross motion to dismiss for lack of prosecution was denied. Those facts are not in the record and consequently may not be considered for the purpose of reversing the determination appealed from. ( Day v. Town of New Lots, 107 N.Y. 148, 157; Matter of Heermance, 254 App. Div. 685, affd. 278 N.Y. 601.) However, plaintiff, if so advised, may make a new application for the relief requested upon additional papers setting forth the facts which have occurred subsequent to the denial of the motion under review, so that a new determination may be made in the light of those facts. Nolan, P.J., Carswell, Adel, Sneed and MacCrate, JJ., concur.