Vorwerk v. Griffith ( 1937 )

In an action to recover property damages amounting to $115, for alleged negligence of defendants, the plaintiff did not file a note of issue for a term within six months after the action was brought. A motion to dismiss was made, but denied on February 11, 1937, “ upon condition that the plaintiff notice this case for the next term of the court and proceed with diligence.” The plaintiff did not file a note of issue for the March term or proceed with diligence, but made a later motion to amend the order to provide that the plaintiff notice the ease within ten days after the disposition of the appeal taken. The defendants made a cross motion to dismiss the action for failure of the plaintiff to comply with the order of February eleventh. Both motions were denied. The defendants appealed from the part of the order denying the motion to dismiss. Order, in so far as an appeal is taken therefrom, reversed on the law and the facts, without costs, and the defendants’ motion to dismiss granted, without costs. The plaintiff has failed to exercise a proper degree of diligence as required by rule 156 of the Rules of Civil Practice. Lazansky, P. J., Hagarty, Davis, Johnston and Close, JJ., concur.