Keller v. U.S. Lines Company

• Decision Date: 11 March 1965
• Citation: 206 N.E.2d 651,258 N.Y.S.2d 644,15 N.Y.2d 908
• Parties: , 206 N.E.2d 651 Moses KELLER, Appellant, v. UNITED STATES LINES COMPANY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 644

258 N.Y.S.2d 644

15 N.Y.2d 908, 206 N.E.2d 651

Moses KELLER, Appellant, v. UNITED STATES LINES COMPANY, Respondent.

Court of Appeals of New York.

March 11, 1965.

Appeal from Supreme Court, Appellate Division, First Department, 21 A.D.2d 968, 252 N.Y.S.2d 730.

Action was brought for injuries.

The Supreme Court, Special Term, New York County, Frederick Backer, J., entered an order denying a motion by the defendant to dismiss the complaint for want of prosecution on condition that plaintiff serve and file a note of issue and statement of readiness for the next available term of the court, and the defendant appealed.

The Appellate Division modified the order, on the law and the facts and in exercise of discretion, and affirmed the order as modified, and held that the action should be dismissed unconditionally for failure of diligent prosecution.

The plaintiff appealed to the Court of Appeals.

Motion to dismiss the appeal granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the determination sought to be reviewed involves a pure question of discretion of the type not reviewable by the Court of Appeals (Miranda v. City of New York, 10 N.Y.2d 883, 223 N.Y.S.2d 509, 179 N.E.2d 512).