Diwinsky v. Tortolani ( 1959 )

Per Curiam.

The above-entitled case came on to be (heard on the plaintiff’s written motion to dismiss the defendant’s bill of exceptions for failure to- file his brief in-accordance with Rule 15 of the Rules of the Supreme Court-

At the hearing the defendant sought to excuse such failure on the ground of past illness of his counsel. Ordinarily we would treat such fact as a sufficient excuse, but in this instance it lacks the persuasive effect it otherwise would have since the court was not apprised thereof by said counsel until the day the case was called for hearing on the merits. In the circumstances some penalty must be imposed but not to the extent of dismissal of the exceptions.

We are of the opinion that while the extreme penalty of dismissal should not be imposed, the plaintiff is at least entitled to have an early hearing on the defendant’s exceptions at this session and to have costs assessed against the ¡defendant for his failure to 'be ready on the day to which the case had been assigned for hearing.

Charles A. Curran, Leonard Decof, for plaintiff. Ralph Rotonda, for defendant.

Accordingly on condition that the defendant pays the plaintiff a counsel fee of $50 on or before March 2, 1959, her motion will be denied and the case peremptorily assigned to March 11, 1959 for hearing on the merits. Otherwise said motion to dismiss will be granted.