Brienza v. Unity Amusement Corp. , 248 A.D. 586 ( 1936 )

Order denying on condition defendant’s motion to dismiss the action for failure to prosecute reversed on the law, without costs, and motion granted, without costs. No affidavit of plaintiff was submitted on the motion. There is not an adequate showing of merits, nor does the nature or extent of plaintiff’s injuries appear. In view of the statement in plaintiff’s attorney’s affidavit as to plaintiff’s impoverished condition, he should have applied to sue as a poor person. In our opinion it was an improper exercise of discretion to deny the motion. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.