Schwartz v. Aschkenazy

Plaintiff appeals from an order restoring the above-entitled action to the trial term general calendar of the Supreme Court, Kings County, insofar as said order directs that said action be placed at the foot of said calendar upon the filing of a new note of issue and the payment of a new filing fee. Order modified by striking from the ordering paragraph everything following the word “ restored ” and by adding thereto the words “ to the calendar in its regular position ” and as so modified, order affirmed, without costs. In our opinion, the facts disclosed in this record required that the discretion of the learned Justice at Trial Term be exercised in favor of directing that the action be restored to the calendar in its regular position. Adel, Acting P. J., Wenzel, MacCrate, Beldoek and Murphy, JJ., concur.