Majority
p. 1019FILM EXCHANGE v. UNITED STATES FIDELITY & GUARANTEE CO. (Supreme Court, Appellate Term, First Department. October 17, 1916.) Argued October term, 1916, before GUY, BIJUR, and SHEARN, JJ.
Headnote
Dismissal and Nonsuit <§»43(4)—Setting Aside.Where plaintiff’s counsel granted delay solicited by defendant under promises he did not fulfill, and defendant utilized the time to obtain dismissal for failure to prosecute, the dismissal should be set aside.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 88; Dec. Dig. @=»43(4).]
oiher cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Special Term.
Action by the Film Exchange against the United States Fidelity & Guarantee Company. From an order dismissing the complaint for failure to prosecute, plaintiff appeals. Reversed, and motion denied.
John Manheimer, of New York City, for appellant.
Chambers & Chambers, of New York City (W. Gerald Phlippeau, ol New York City, of counsel), for respondent.
It clearly appears that the delay complained of was solicited by the defendant and was secured under promises that were never fulfilled; further, that defendant’s attorneys rewarded the consent of plaintiff’s counsel for one final week of delay by utilizing the time to bring on a motion to dismiss for failure to prosecute.
The order of dismissal is reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.