Elsters v. Yudin

Plaintiffs failed to present any valid reason or excuse for their delay of more than 36 months after joinder of issue in bringing the cause on for trial. In the circumstances, it was an improper exercise of discretion to deny defendant’s motion to dismiss the action unconditionally for lack of prosecution (Johnson v. Moody's Investors Serv., 285 App. Div. 966; Brassner Mfg. Co. v. Consolidated Edison Co., 1 A D 2d 840; Hardware Mut. Cas. Co. v. Rosenberg, 3 A D 2d 988; Fischer v. Tushnett, 256 App. Div. 833; Birch v. Wolper, 1 A D 2d 1028; Trapani v. Samuels, 3 A D 2d 861; Rothman v. Skernick, 15 Misc 2d 962 [App. Term, 2d Dept.]).

The order should be unanimously modified by deleting therefrom the words “ unless the plaintiffs notice the case for trial on or before February 17, 1958 ” and, as so modified, order affirmed, with $10 costs and taxable disbursements to the defendant.

Concur — Pette, Hart and Brown, JJ.

Order modified, etc.