Appellate Division of the Supreme Court of New York, 1964

Hammond v. City of New York

Hammond v. City of New York
Appellate Division of the Supreme Court of New York · Decided April 21, 1964
20 A.D.2d 877; 248 N.Y.S.2d 523; 1964 N.Y. App. Div. LEXIS 3991
Hammond v. City of New York

Opinion of the Court

Order entered December 20, 1963, denying plaintiffs’ motion to open their default and to vacate the dismissal of their complaint, and the judgment entered November 27, 1963, dismissing the complaint for failure to proceed to trial, unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs, the motion to vacate the dismissal and the judgment thereon granted and the action is ordered restored to its proper place on the Ready Personal Injury Jury Calendar, Supreme Court, Bronx County. It was an improvident exercise of discretion on the part of the trial court to mark the cause peremptorily against plaintiffs in the first instance and subsequently to dismiss the complaint when an unqualified affidavit of serious illness was presented on behalf of the attorney for the plaintiffs. In the circumstances a further adjournment of the cause was indicated. Concur — Breitel, J. P., McNally, Eager, Steuer and Staley, JJ.

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