Opinion
November 2, 1959
In an action, the nature of which is not disclosed, the appeal by notice dated May 2, 1959 is (1) from an order entered March 26, 1959 denying appellant's motion to dismiss the complaint for failure to serve a copy thereof for almost one year after the notice of appearance had been served (Civ. Prac. Act, § 257) and for failure diligently to prosecute the action (Civ. Prac. Act, § 181; Rules Civ. Prac., rule 156), and (2) from an order entered April 20, 1959 which on reargument denied the motion to dismiss on the ground that the motion became academic in view of the service by respondent of a notice of discontinuance pursuant to paragraph (a) of subdivision 1 of rule 301 of the Rules of Civil Practice. Order entered April 20, 1959 modified by striking therefrom everything following the word "reargument" and by substituting therefor the words "the motion to dismiss the complaint is granted, without prejudice to plaintiff, if so advised, to move to open his default upon a showing of a reasonable excuse for the delay, and an affidavit of merit." As so modified, order insofar as appealed from affirmed, with $10 costs and disbursements to appellant. Since reargument was granted, and since the issues upon reargument were the same as those on the original motion, those issues must be determined without regard to the notice of discontinuance, which was filed subsequent to the argument of the original motion. Consequently, the motion to dismiss should have been granted, without prejudice to a motion by respondent to open his default. (See Blasser v. Morrisania Milk Co., 243 App. Div. 281; Silverberg v. Campana, 5 A.D.2d 848.) "If rules of practice mean anything, they should be observed." ( Seehase v. Webster, 284 App. Div. 102 8.) Appeal from order entered March 26, 1959 dismissed. (Cf. Graffeo v. Graffeo, 7 A.D.2d 741.) Wenzel, Acting P.J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur.