Geh v. Mezey

• Court: New York Supreme Court
• Writing for the Court: GEORGE H. VINETTE
• Citation: Geh v. Mezey, 207 N.Y.S.2d 703, 26 Misc.2d 1095 (N.Y. Sup. Ct. 1960)
• Decision Date: 13 October 1960
• Parties: Karl GEH, Plaintiff, v. George Julius MEZEY, Defendant.

Page 703

207 N.Y.S.2d 703

26 Misc.2d 1095

Karl GEH, Plaintiff, v. George Julius MEZEY, Defendant.

Supreme Court, Onondaga County.

Oct. 13, 1960.

Estabrook, Estabrook, Burns & Hancock, Syracuse, for plaintiff.

Shaffer & Leverton, Syracuse, for defendant.

GEORGE H. VINETTE, Justice.

There are three motions in the above-entitled action. By notice of motion dated September 14, 1960, the plaintiff moved for an order directing that a commission issue in this action for the examination of the plaintiff in Australia. The moving affidavit submitted by one of the attorneys for the plaintiff alleges substantially as follows: that the plaintiff is a resident of Australia; that the defendant executed and delivered to the plaintiff his promissory note in writing wherein he promised to pay to the plaintiff the sum of Six Hundred Pounds twelve months after July 7, 1956; that the consideration for the said promissory note was the plaintiff's forbearance of a suit to set aside a previous sale of stock from the defendant to the plaintiff; that the defendant contends that the promissory note was executed without consideration and is of no effect.

By a notice of motion dated September 23, 1960, the defendant moved to dismiss the complaint for failure to prosecute pursuant to Section 181 of the Civil Practice Act and Rule 156 of the Rules of Civil Practice. The following appears from the moving affidavit: the summons and complaint were served on or about July 31, 1958. The answer was served on August 18, 1958; that on September 15, 1958, defendant served a demand for bill of particulars; that on November 13, 1958 plaintiff's attorney served a bill of particulars; that a note of issue could have been served and filed for the December 1958 trial term of this court; that the plaintiff has not taken any steps to place this case on the trial calendar and the case is not on the trial calendar of this court; that younger issues upon the calendar have been reached by this court in regular order and tried or otherwise disposed of.

By notice of motion dated September 26, 1960, the defendant moved for an order directing that any commission which might issue herein provide for the taking of testimony wholly or partly upon oral interrogatories and that such order be conditioned upon the payment by the plaintiff of the reasonable costs and expenses of defendant's counsel. The moving affidavit which is partly memorandum on the law opposes the plaintiff's motion for a commission. In effect, this motion is simply a defense to the plaintiff's motion.

It appears from the papers herein that the plaintiff has not taken any steps to prosecute this action since its service of bill of particulars on or about November 13, 1958. It does appear in the memorandum of law submitted by the plaintiff that in October 1959, the defendant moved to require plaintiff to furnish surety bond and this was furnished in the same month.

A motion to dismiss for failure to prosecute, made pursuant to Section 181 of the Civil Practice Act and Rule 156 of the Rules of Civil Practice, must be granted unless the plaintiff shows by an affidavit that he has a meritorious cause of action and that he has a reasonable excuse for the delay. The plaintiff did not serve any answering affidavit on the ...