Ruderman v. Feffer

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BREITEL; PER CURIAM
• Citation: Ruderman v. Feffer, 198 N.Y.S.2d 130, 10 A.D.2d 704 (N.Y. App. Div. 1960)
• Decision Date: 29 March 1960
• Parties: Harry RUDERMAN and Blanche Morris, as Administrators of the Estate of Preston Morris, Deceased, Plaintiffs-Respondents, v. Nathan FEFFER, Defendant-Appellant, and Herman Reich, Inc., et al., Defendants.

Page 130

198 N.Y.S.2d 130

10 A.D.2d 704

Harry RUDERMAN and Blanche Morris, as Administrators of the Estate of Preston Morris, Deceased, Plaintiffs-Respondents, v. Nathan FEFFER, Defendant-Appellant, and Herman Reich, Inc. et al., Defendants.

Supreme Court, Appellate Division, First Department.

March 29, 1960.

H. Ruderman, New York City, for plaintiffs-respondents.

J. M. Gilleran, New York City, for defendant-appellant.

Before BREITEL, J. P., and RABIN, M. M. FRANK, McNALLY and STEVENS, JJ.

PER CURIAM.

Order unanimously reversed, on the law and on the facts, and in the exercise of discretion, and the motion to dismiss for lack of prosecution granted, without costs. Plaintiffs, if they be so advised, are given leave to move to vacate the dismissal on a proper affidavit of merits. The consequences of the inordinate delay in the prosecution of this cause must be shared by both parties. After July 1, 1953, the date of death of the plaintiffs' decedent, this action abated and could be revived and continued only upon the substitution of the decedent's successors in interest as plaintiffs. Until the substitution of the administrators was made on March 24, 1959, no lawful proceedings in the action could be taken by either party and the decedent's attorney ceased to be his attorney after July 1, 1953. Application for proper substitution might have been made by a party representing the decedent or by the defendant. Civil Practice Act, § 84; Wilson v. Harter, 57 App.Div. 484, 68 N.Y.S. 116; O'Brien v. Flynn, 228 App.Div. 704, 239 N.Y.S. 59. Nevertheless, we have repeatedly held that a failure to prosecute requires the dismissal of the action in the absence of a showing of merits. Charles Barnett Co. v. St. Paul Fire & Marine Ins. Co., 7...