Opinion
September 20, 1963
Appeal from the Erie Special Term, FISHER, J.
Present — Williams, P.J., Bastow, Goldman and Noonan, JJ.
Order of April 20, 1960, insofar as appealed from, unanimously reversed, without costs of this appeal to either party, and motion granted, without costs. Order of April 6, 1959, unanimously reversed and the judgment based thereon vacated, without costs. Memorandum: While we do not condone the unseemly delay in the prosecution of this action by the plaintiff and her attorney, nevertheless, under all the facts and circumstances of the case, in the exercise of a reasonable discretion, the motion should have been granted. We also give consideration to the fact that there is an action still pending arising out of the same accident which must be tried in any event. (See Speier v. St. Francis Church, 3 A.D.2d 732.)