Swanson v. Alter — 5 Misc. 2d 523

Majority

p. 523

Wally Swanson, Respondent, v. Samuel Alter et al., Doing Business as The Food Family, Appellants.

Supreme Court, Appellate Term, First Department,

October 18, 1956.

Leonard M. Henkin for appellants.

Melvel W. Snitow for respondent.

Plaintiff failed to set forth a satisfactory explanation for the long delay in the trial of the action or for his failure to move promptly to vacate the dismissal after his default. The Appellate Division maintains a firm attitude against unwarranted delay in prosecuting cases. (A. R. Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942 .)

The retention of the check for the costs imposed as a condition for opening the default without depositing it for collection, is not a bar to this appeal under all the circumstances here.

The order opening the default was, in the face of the lack of due diligence without adequate reason therefor, improvidently made and should be reversed, and the plaintiff’s motion denied.

The order should be reversed, with $10 costs and disbursements, and motion denied.

Edeb, Heoht and Tilzeb, JJ., concur.

Order reversed, etc.