Schuman v. Hertz Corp. — 17 N.Y.2d 604

Majority

p. 604

Ruth Schuman, as Administratrix of the Estate of Henry Schuman, Deceased, Appellant, v. Hertz Corporation et al., Respondents.

Argued January 13, 1966;

decided February 24, 1966.

p. 605

Irving Malchman for appellant.

Stanley Roth for respondents.

Memorandum. The order of the Appellate Division is reversed, without costs, and the matter is remitted to Supreme Court, Bronx County, for further proceedings. The record before us indicates that the dismissal of the original suit was not intended by the Justice presiding to be a dismissal for neglect to prosecute. We call particular attention to the fact that the same Justice who dismissed the original action also denied defendant’s motion to dismiss this complaint on the grounds that the original one had not been dismissed for neglect

p. 606

to prosecute. Since this action was timely commenced, it is within the saving provisions of CPLR 205.

Chief Judge Desmond and Judges Fuld, Van Voorhis, Burke, Scileppi, Bergan and Keating concur.

Order reversed, without costs, and matter remitted to the Supreme Court for further proceedings in accordance with the memorandum herein.