Kanare v. City of New York , 174 N.Y.S.2d 259 ( 1958 )

Motion for reargument granted and on reargument the decision of this court handed down February 17, 1958 is amended to read as follows: In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from an order denying a motion, pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice, to dismiss the complaint for lack of prosecution, on condition that- respondents serve and file a note of issue for the next available term. Order modified by adding to the ordering paragraph after the words “term of this court” the words “ and on the further condition that plaintiffs’ attorney pay $100 to the defendant”. As so modified, order affirmed, without costs. The payment of $100 shall be made within 10 days after the entry of the order hereon. Under the circumstances, it is our opinion that the payment as directed herein should have been imposed as an additional condition for the denial of the motion. Murphy, Hallinan and Kleinfeld, JJ., concur; Wenzel, Acting P. J., dissents and votes to deny the motion; Beldock, J., dissents and votes to deny the motion, with the following memorandum: On the appeal counsel for the respondents presented substantially the identical arguments which he now advances on this motion for reargument. On February 17, 1958 this court unanimously reversed the determination of the Special Term and granted the motion to dismiss the complaint for lack of prosecution. The present motion for reargument contains no question, decision or argument which was overlooked by this court on the appeal. Accordingly, in my opinion, there is no merit to the application for reargument.