Morris v. Herman Reich, Inc.

The defendants’ motion to dismiss this action for lack of prosecution is denied without prejudice to an application in New York County. It appears from the papers before the court and from the oral argument, that a stipulation consenting to transfer this action to New York County was entered into in 1954 and that on November 24, 1954, an order to that effect was signed by a Justice of this court. Plaintiff’s attorney asserts that he has been unable to find either the order on file or the stipulations and that it is because of this circumstance that he has been unable to proceed with the case in New York County and to place it on the calendar there. He claims that the transfer has never actually taken place.

If that be so, then plaintiff has good reason for not having placed the case on the calendar. In any event, the order entered in November, 1954, transferring this action to New York County, deprived this court of any further jurisdiction over said action, and the motion may not be here considered, but should be made in New York County. The rule permitting motions to be heard in an adjoining county from the one in which an action is pending, is not applicable where the action is triable in the First District (Rules Civ. Prac., rule 63).

The motion is accordingly denied, as heretofore stated.

Submit order.