People v. Spry , 170 N.Y.S.2d 722 ( 1958 )

In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from an order vacating an order dismissing the complaint and restoring the action to the general calendar. Order affirmed, with $10 costs and disbursements. This affirmance is not to be deemed to supersede or to affect in any way our Statement of Readiness Rule or any action which may have been taken pursuant to such rule. Nolan, P. J., Hallinan and Kleinfeld, JJ., concur; Beldock and Murphy, JJ., dissent and vote to reverse the order and to deny the motion, with the following memorandum: The accident happened on April 2, 1948 and the action was commenced in the same month. Issue was joined July 6, 1948. In July, 1953 a motion for a preference under rule 9 of the Kings County Supreme Court Trial Term Rules was denied. When the action was called for trial on April 4, 1955 respondents defaulted, and the action was dismissed. Thirteen months later, a motion to vacate the dismissal was granted despite the previous denial of a preference pursuant to rule 9. On October 23, 1956 the action was again dismissed upon respondents’ default in appearing for trial. Upon stipulation the action was restored to the calendar in the same year. On February 5, 1957 respondents again defaulted in appearing for trial, and the action was again dismissed. The record indicates that the action was dismissed three times, each time on the default of the respondents. Furthermore, there is no medical proof that there is a causal relation between the effects of the accident and the coronary thrombosis alleged to have been suffered by the respondent Sadie Rojak. Parenthetically it should be noted that she has already received nearly $5,500 as workmen’s compensation, which must be returned out of any judgment she may recover.