Andreasian v. Melikian

In an action for rescission of contract and restitution of moneys paid thereunder, plaintiffs appeal from an order of the Supreme Court, Queens County, entered May 16, 1972, which denied their motion (1) to vacate a judgment of said court entered January 28, 1972 upon their default in proceeding to trial and (2) to restore the case to the Trial Calendar. Order reversed, in the exercise of discretion, without costs other than those mentioned below, and motion granted, upon condition that, within 10 days after service of the order to be entered hereon, plaintiffs’ attorneys pay defendant $100; otherwise, order affirmed, with costs. We have concluded that under the facts presented in this case, including the circumstances leading to the failure of plaintiffs’ counsel to proceed to trial and the onerous consequences of the dismissal to plaintiffs and their attorneys, this case should be restored to the calendar for trial upon the condition stated hereinabove. Martuscello, Acting P. J., .Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.