A. R. Hyde & Sons v. Roller Derby Skate Co.

• Decision Date: 17 April 1956
• Citation: A. R. Hyde & Sons v. Roller Derby Skate Co., 150 N.Y.S.2d 325, 1 A.D.2d 942 (N.Y. App. Div. 1956)
• Parties: A. R. HYDE & SONS, a Massachusetts corporation, Plaintiff-Respondent, v. ROLLER DERBY SKATE CO., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 325

150 N.Y.S.2d 325

1 A.D.2d 942

A. R. HYDE & SONS, a Massachusetts corporation, Plaintiff-Respondent, v. ROLLER DERBY SKATE CO., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 17, 1956.

D. G. Paston, New York City, for defendant-appellant.

Reich, Peller, Guadagno & Caine, New York City, for plaintiff-respondent.

Before PECK, P. J., and BREITEL, BOTEIN, RABIN and COX, JJ.

PER CURIAM.

Issue was joined on January 13, 1955, one month after commencement by plaintiff, a Massachusetts corporation, not licensed to do business in New York, of an action to recover the balance due on goods sold and delivered, wherein defenses alleged, among others, were that plaintiff was not the real party in interest; payment; accounts stated and another action pending between the parties in Illinois involving the same subject matter. Special Term's dismissal of the complaint for failure to prosecute was conditioned on plaintiff's service and filing of a note of issue for the following March Term and payment of statutory fees. This court has maintained a firm attitude against unwarranted delay in prosecuting actions. Cooper v. Schnabolk, 283 App.Div. 937, 130 N.Y.S.2d 606; Davis v. Cunard Steamship Co., 284 App.Div. 1036, 135 N.Y.S.2d 665. A perfunctory...