Opinion
March 12, 1963
Order, entered on June 6, 1962, denying plaintiffs' motion to vacate the dismissal for failure to proceed to trial, unanimously reversed in the exercise of discretion, with $20 costs and disbursements to appellants, and motion granted. In the circumstances of this case the dismissal was improvident and the motion to vacate should have been granted. This case appeared on the calendar for the first time on March 28, while the attorney for the plaintiffs was abroad. The first notice that the case would be on the calendar on March 28 appeared in the Law Journal on March 20, six days after plaintiffs' counsel had left the country for a three-week trip. A short adjournment was asked for so that the plaintiffs' attorney could try the case upon his return. Although the motion to dismiss was made by counsel for the defendant, he did so at the suggestion of the court, not having demurred to the statement of the plaintiffs' representative that the attorney for the defendant had no objection to an adjournment. We believe that, in the circumstances, the request for an adjournment for the short period — the case appearing on the calendar for the first time — was not unreasonable. It should have been granted pending return of plaintiffs' counsel or in any event to afford plaintiffs reasonable opportunity to obtain other counsel suitable to them.
Concur — Rabin, J.P., McNally, Stevens, Eager and Steuer, JJ.