Willwerth v. Sterling Fire Insurance , 130 N.Y.S.2d 628 ( 1954 )

Appeal from an order of the Supreme Court, Special Term, Schoharie County, which denied a motion pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice, to dismiss the complaint herein for failure to prosecute. The action was based upon a policy of insurance against automobile collision damage and was commenced by the service of a bare summons on February 11, 1949. The ease appeared on the trial calendar in Schoharie County at several terms although no complaint had been served. The complaint was apparently finally served some time in March, 1953. Although a considerable period of time elapsed between the date when the summons was served and the time when the complaint was finally served, no motion was made by the defendant for dismissal of the action. We do not find that the Special Term abused its discretion in refusing to grant the motion to dismiss. Order unanimously affirmed, with $10 costs. Present — Foster, F. J., Bergan, Coon, Halpern and Imrie, JJ.