McGee v. Levy

Order denying defendant’s motion to dismiss complaint for failure to prosecute reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. PL'intiff has failed to sustain the burden of satisfactorily explaining his neglect to proceed with the trial of the action, and the discretion *721of the learned Special Term under the circumstances was improperly exercised. (Regan v. Milliken Bros., 123 App. Div. 72, 73.) Kelly, P. J., Rich, Jaycox and Young, JJ., concur; Kapper, J., absent and not voting.