Benjamin v. Chock Full of Nuts Inc.

• Decision Date: 21 February 1963
• Citation: Benjamin v. Chock Full of Nuts Inc., 237 N.Y.S.2d 986, 18 A.D.2d 906 (N.Y. App. Div. 1963)
• Parties: Gerard BENJAMIN, Plaintiff-Respondent, v. CHOCK FULL OF NUTS INC., Defendant-Appellant, and Melvin Johnson, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 986

237 N.Y.S.2d 986

18 A.D.2d 906

Gerard BENJAMIN, Plaintiff-Respondent, v. CHOCK FULL OF NUTS INC., Defendant-Appellant, and Melvin Johnson, Defendant.

Supreme Court, Appellate Division, First Department.

Feb. 21, 1963.

I. S. Worthman, New York City, for defendant-appellant.

E. A. Williams, Rochester, for plaintiff-respondent.

Before RABIN, J. P., and McNALLY, STEVENS, EAGER and STEUER, JJ.

PER CURIAM.

Order, entered on June 28, 1962, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant. Present counsel states that former counsel of record was erroneously given the impression that the note of issue had been filed during the time of his illness, and advances as a further explanation the failure of the plaintiff to deposit the necessary filing fee for a note of issue. These are insufficient excuses to justify a failure to diligently prosecute for eighteen months after issue was joined. Inadvertence under such circumstances has been held to be an inadequate excuse (Goldfarb v. Mallin, 3 A.D.2d 735, 160 N.Y.S.2d 125). Moreover, if plaintiff was unable to advance the filing fee the remedy was to apply to sue as a poor person rather than delay the...