Moebus v. Paul Tishman Co.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: Action was brought to recover for injuries. The Supreme Court, Special Term, Kings County, J. C. Crane
• Citation: Moebus v. Paul Tishman Co., 183 N.Y.S.2d 563, 5 N.Y.2d 945 (N.Y. 1959)
• Decision Date: 26 February 1959
• Parties: , 156 N.E.2d 919 Bertrand E. MOEBUS, Appellant, v. PAUL TISHMAN CO., Inc. et al., Respondents, and Paul Tishman General Contractor, Inc., Defendant.

Page 563

183 N.Y.S.2d 563

5 N.Y.2d 945, 156 N.E.2d 919

Bertrand E. MOEBUS, Appellant, v. PAUL TISHMAN CO., Inc. et al., Respondents, and Paul Tishman General Contractor, Inc., Defendant.

Court of Appeals of New York.

Feb. 26, 1959.

Appeal from Supreme Court, Apellate Division, Second Department, 5 A.D.2d 786, 170 N.Y.S.2d 611.

Action was brought to recover for injuries. The Supreme Court, Special Term, Kings County, J. C. Crane, J., entered an order denying a motion to dismiss the complaint for lack of diligent prosecution, and the moving defendants appealed.

The Appellate Division, 5 A.D.2d 786, 170 N.Y.S.2d 611, reversed the order, granted the motion, and held that in view of failure of plaintiff to set forth any facts showing merit in his action or excusing his delay in prosecution thereof, it was an improvident exercise of discretion by the Special Term to deny the motion.

The Appellate Division, 5 A.D.2d 867, 172 N.Y.S.2d 546, denied motion for reargument.

The plaintiff appealed to the Court of Appeals, contending that the Court of Appeals was required to presume that questions of fact were not considered, and that the order appealed from was decided on the law only, and that there was an abuse of discretion by the Appellate Division, and that the arbitrary decision of the Appellate Division violated Article 1, Section 6 of the New York Constitution, and the Fifth Amendment to the federal Constitution when the Appellate Division ignored plaintiff's affidavits in explanation of the delay.

Joseph Dean Edwards, New York City (Jacques Smit, Dominic Morabito, Olin S. Nye, and John J. Tomich, New York City, of counsel), for appellant.

John P. Smith, New York City (John Nielsen, New York City, of counsel), for respondents Paul Tishman Co., Inc., and I. B....