Opinion
May 17, 1944.
Present — Cunningham, P.J., Taylor, Dowling, Harris and Larkin, JJ.
Order reversed as a matter of discretion, without costs of this appeal to either party, and plaintiff's motion denied, without costs, and defendant's motion granted, without costs. Memorandum: The plaintiff's cause of action, except for fifteen days in May, 1931, is barred by the six-year Statute of Limitations. Any possible recovery would be for merely nominal damages. The case should not be restored to the calendar for that reason alone.
All concur, except Harris, J., who dissents and votes for affirmance in the following memorandum:
There is no reason to interfere with the exercise of sound discretion by the Special Term. The disposition of the question of damages is a function of a jury; Larkin, J., not voting. (The order grants plaintiff's motion to restore a silicosis action to the trial calendar and denies defendant's motion to dismiss the complaint for failure to prosecute.)