Pomerantz v. Cave

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM
• Citation: Pomerantz v. Cave, 195 N.Y.S.2d 437, 10 A.D.2d 569 (N.Y. App. Div. 1960)
• Decision Date: 26 January 1960
• Parties: Rose L. POMERANTZ, as Administratrix of the goods, chattels and credits of Nathan J. Pomerantz, deceased, Plaintiff-Appellant, v. Henry W. CAVE and Thomas Scudder Winslow, Defendants-Respondents.

Page 437

195 N.Y.S.2d 437

10 A.D.2d 569

Rose L. POMERANTZ, as Administratrix of the goods, chattels and credits of Nathan J. Pomerantz, deceased, Plaintiff-Appellant, v. Henry W. CAVE and Thomas Scudder Winslow, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Jan. 26, 1960.

J. L. Goldstein, New York City, for plaintiff-appellant.

J. F. Brosnan, New York City, for defendants-respondents.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and STEVENS, JJ.

PER CURIAM.

Order unanimously affirmed with $20 costs and disbursements to defendants-respondents. This action was commenced after it was barred by the statute of limitations (Civil Practice Act, § 50) and was not saved by the provisions of section 23 of the Civil Practice Act which, in substance, enables a plaintiff a year after the termination, on grounds other than upon the merits, a voluntary discontinuance or neglect to prosecute, to sue again on the same cause of action. The dismissal of the appellant's prior actions, pursuant to rule 302 of the Rules of Civil Practice, by reason of the fact that they had not been restored to the calendar within one year after being stricken therefrom for failure to file statements of readiness, and the order thereafter made denying appellant's motion to open her said default and to vacate the judgment therein, affirmed herewith, constitute a dismissal for neglect to prosecute said actions within the purview of the exception of section 23 of the Civil Practice Act. Barnett Co. v. St. Paul Fire & Marine Ins. Co., 7 A.D.2d 897, 181 N.Y.S.2d 890; Roe v. Kurkhill, 6 A.D.2d 716, 174 N.Y.S.2d 573; Walsh v. Ben Riley's Arrowhead Inn, 2 A.D.2d 714, 153 N.Y.S.2d 651; Loomis v. Girard Fire & Marine Ins. Co., 256 App.Div. 443, 10 N.Y.S.2d 283; contra: Austrian v. Red Arrow Bonded Messenger Corp., 16 Misc.2d 1082, 184 N.Y.S.2d 92. Section 181 of the Civil Practice Act enables a defendant to move the court for a dismissal of the complaint for unreasonable neglect to proceed in the action. The said section was not intended to nor does it circumscribe the inherent power of the courts over the control of their calendars. Cf. Plachte v. Bancroft, Inc., 3 A.D.2d 437, 161 N.Y.S.2d 892; Frederick v. Oliver & Burr, 154 App.Div. 346, 139 N.Y.S. 320. Rule 302 of the Rules of Civil Practice is not in conflict with or precluded by section 181 of the Civil Practice Act.