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Hoberman v. Diamond

130 N.Y.S. 139 Court N.Y. App. Term Decision date 1911-06-12 English

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p. 139
HOBERMAN v. DIAMOND.
(Supreme Court, Appellate Term.
June 12, 1911.)

Headnote

Dismissal and Nonsuit (§ 60[1] ) — Grounds — Failure to Prosecute — Marked “Off.”
The case having appeared for trial, a juror was withdrawn to permit plaintiff to apply at Special Term for leave to amend his complaint. Four weeks after it was disposed of at Special Term, it again appeared on the calendar for trial, and, neither side answering, it was marked “off,” which meant that it would again appear on the call calendar after causes on that calendar had been disposed of. It did so appear, and was about to be reached, when it was dismissed for failure to prosecute. Seven weeks elapsed between the time the juror was withdrawn and the dismissal; but it did not appear that younger issues had been tried in the meantime. Held, that the delay was not unreasonable, and that the dismissal was erroneous.
(Ed. Note.—For other cases, see Dismissal and" Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.[1] ]
Appeal- from City Court of New York, Special Term.
Action by Max Hoberman against William J. Diamond. From an order of the City Court, dismissing plaintiff’s complaint for failure to prosecute, he appeals.
Reversed.
Argued before SEABURY, GUY, and BIJUR, JJ.
M. & B. Jaffe (Benjamin Jaffe, of counsel), for appellant.
Ruskay, Williams & Ruskay (Louis B. Williams, of counsel), for respondent.

This case appeared for trial February 23, 1911, and a juror was withdrawn to permit the plaintiff to apply to the Special Term for leave to amend his complaint. About four weeks after it was disposed of at Special Term, it again appeared upon the calendar, and, upon being called and neither side answering, it was marked “off.” This marking meant that it would again appear upon the call calendar, after the causes on that calendar had been disposed of, and therefore it was on the calendar and about to be reached when it was dismissed. But seven weeks had elapsed between the time a juror was withdrawn and the time it was dismissed. It was not shown

p. 140
that younger issues had been tried in the meantime, nor that the delay was unreasonable, and the order must be reversed.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.