Brassner Mfg. Co. v. Consolidated Edison Co. of N.Y.

• Court: New York Supreme Court — Appellate Division
• Citation: Brassner Mfg. Co. v. Consolidated Edison Co. of N.Y., 148 N.Y.S.2d 782, 1 A.D.2d 840 (N.Y. App. Div. 1956)
• Decision Date: 20 February 1956
• Parties: BRASSNER MFG. CO., Inc., respondent, v. CONSOLDATED EDISON COMPANY OF NEW YORK, Inc., appellant.

Page 782

148 N.Y.S.2d 782

1 A.D.2d 840

BRASSNER MFG. CO., Inc., respondent, v. CONSOLDATED EDISON COMPANY OF NEW YORK, Inc., appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 20, 1956.

Abraham H. Jackness, New York City, for appellant.

Monroe V. Mann, Port Chester, for respondent.

Before NOLAN, P. J., and WENZEL, BELDOCK, MURPHY and UGHETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages allegedly sustained by reason of the careless and improper manner in which appellant converted the glass ovens of respondent to natural gas, the appeal is from an order granting the motion of appellant to dismiss the complaint for lack of prosecution, unless the case be placed on the calendar for the next available term.

Order modified by striking from the ordering paragraph everything following the word 'granted', and as thus modified, affirmed, with $10 costs and disbursements to appellant.

Respondent failed to present facts showing any reasonable excuse for its delay of some two years after joinder of issue in bringing the cause on for trial, or to make an adequate, if any, showing of merits. It was an improper exercise of discretion to deny the motion, in effect, by granting it conditionally, Fischer v. Tushnett, 256 App.Div. 833, 9 N.Y.S.2d 254; Giovannucci v. Brooklyn & Richmond Ferry Co., Inc., 278 App.Div. 861, 104 N.Y.S.2d 809; Lange v. Bagish, 285 App.Div....