Opinion
March 29, 1960
Order unanimously reversed, on the law and on the facts, and in the exercise of discretion, and the motion to dismiss for lack of prosecution granted, without costs. Plaintiffs if they be so advised, are given leave to move to vacate the dismissal on a proper affidavit of merits. The consequences of the inordinate delay in the prosecution of this cause must be shared by both parties. After July 1, 1953, the date of death of the plaintiffs' decedent, this action abated and could be revived and continued only upon the substitution of the decedent's successors in interest as plaintiffs. Until the substitution of the administrators was made on March 24, 1959, no lawful proceedings in the action could be taken by either party and the decedent's attorney ceased to be his attorney after July 1, 1953. Application for proper substitution might have been made by a party representing the decedent or by the defendant. (Civ. Prac. Act, § 84; Wilson v. Harter, 57 App. Div. 484; O'Brien v. Flynn, 228 App. Div. 704.) Nevertheless, we have repeatedly held that a failure to prosecute requires the dismissal of the action in the absence of a showing of merits. ( Barnett Co. v. St. Paul Fire Mar. Ins. Co., 7 A.D.2d 897; Rist v. 234 East 33rd Corp., 4 A.D.2d 867; Hyde Sons v. Roller Derby Skate Co., 1 A.D.2d 942; Davis v. Cunard S.S. Co., 284 App. Div. 103 6; Cooper v. Schnabolk, 283 App. Div. 937.)
Concur — Breitel, J.P., Rabin, M.M. Frank, McNally and Stevens, JJ.