Bongiorno Construction Co. v. Ace Test Boring, Inc. ( 1966 )

In a negligence aetion by a home builder to recover damages resulting from an allegedly incorrect boring report, plaintiff appeals from an order of the Supreme Court, Kings County, entered June 21, 1965, which denied its motion to vacate the dismissal of the aetion because of plaintiff’s failure to appear for trial and to restore the aetion to the Trial Term Calendar. Order reversed, without costs, and motion granted, on condition that plaintiff pay defendants $100 plus defendants’ necessary disbursements on the appeal. In our opinion, under the circumstances of this ease, it was an improvident exercise of discretion to determine the motion unconditionally against plaintiff.

Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.