Webb v. Consolidated Edison Co.

In an action to recover damages for personal injuries, Consolidated Edison Company of New York, Inc., appeals from an order conditionally granting its motion to dismiss the complaint as against it for failure to prosecute, unless a note of issue be served for the next term of court. Although the order appealed from, which is dated January 6, 1956, indicates that no appearance was made and that no papers were filed on behalf of respondent, her brief states that her attorney did appear on the return day of the motion after the calendar had been called. Order modified by striking from the ordering paragraph everything following the word “granted”. As so modified, order affirmed, with $10 costs and disbursements to appellant, with leave to respondent, if she be so advised, to move within 10 days after entry of the order hereon to open her default on the motion to dismiss. Upon the record before us, it may not be said the respondent sustained the burden of justifying the delay. Nolan, P. J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur.