Goldfarb v. Mallin, WARNER-HENICK
| Decision Date | 12 March 1957 |
| Docket Number | WARNER-HENICK |
| Citation | 160 N.Y.S.2d 125,3 A.D.2d 735 |
| Parties | Benjamin GOLDFARB, Plaintiff-Respondent, v. Edward J. MALLIN and Marvin S. Winter, as Trustee under a Trust Agreement, Defendants-Appellants. Edward J. MALLIN and Marvin S. Winter, as Trustee under a Trust Agreement, Third-Party Plaintiff, v.FURNITURE CORP., Third-Party Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
I. S. Worthman, New York City, for defendants-appellants.
P. Wilensky, New York City, for plaintiff-respondent.
Before PECK, P. J., and RABIN, FRANK, McNALLY and BERGAN, JJ.
This is an appeal from an order denying a motion to dismiss the complaint for failure to prosecute. The accident occurred on October 3, 1953. The summons and complaint were served on July 2, 1954. The plaintiff received the answer and a demand for a bill of particulars on August 12, 1954, but has never complied with the demand. The motion to dismiss was made on October 10, 1956, and it was only then that a belated note of issue for a non-jury trial was filed. On this appeal no brief was filed within the time specified by the rules. The excuse that the failure to file a note of issue was inadvertent is most unimpressive. From its inception, the processing of this action indicates a disregard of the rules promulgated for the proper disposition of litigation. Procedural provisions and court rules are not enacted to be honored in their breach. Order unanimously reversed with $20 costs and disbursements to the appellants and the motion granted, and the clerk is directed to enter judgment in favor of the defendants Edward J. Mallin and Marvin S. Winment as Trustees under a Trust Agreement, against the plaintiff Benjamin Goldfarb, dismissing the complaint herein with costs for failure to prosecute. Order filed.
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... ... 3 N.Y.2d 979, 147 N.E.2d 245 ... Benjamin GOLDFARB, Appellant, ... Edward J. MALLIN and Marvin S. Winter, as Trustee under a ... Trust Agreement, Respondents, and Edward J. Mallin and ... Marvin S. Winter, as Trustee under a Trust Agreement, ... Third-Party Plaintiffs; Warner-Henick Furniture Corp., ... Third- Party Defendant-Respondent ... Court of Appeals of New York ... Nov. 21, 1957 ... Appeal from Supreme Court, Appellate Division, First Department, 3 A.D.2d 735, 160 N.Y.S.2d 125 ... Motion was made to dismiss complaint for failure to ... ...
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