Wavrovics v. City of New York

• Decision Date: 11 May 1961
• Citation: Wavrovics v. City of New York, 214 N.Y.S.2d 818, 13 A.D.2d 738 (N.Y. App. Div. 1961)
• Parties: Ruth WAVROVICS and Louis Wavrovics, Plaintiffs-Respondents, v. CITY OF NEW YORK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 818

214 N.Y.S.2d 818

13 A.D.2d 738

Ruth WAVROVICS and Louis Wavrovics, Plaintiffs-Respondents, v. CITY OF NEW YORK, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 11, 1961.

H. B. Glaser, New York City, for plaintiffs-respondents.

R. L. Ellis, New York City, for defendant-appellant.

Before BREITEL, J. P., and RABIN, VALENTE, McNALLY and BASTOW, JJ.

PER CURIAM.

Order entered on or about June 20, 1960, granting plaintiffs' second motion for a renewal of an application to vacate a dismissal of the action on January 3, 1958, pursuant to Rule 302 of the Rules of Civil Practice and to restore the case to the calendar, unanimously reversed, on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion denied with $10 costs. Although no motion was made to open the default before moving to restore the case to the calendar (Mintzer v. Carl M. Loeb, Rhoades & Co., 10 A.D.2d 27, 29, 197 N.Y.S.2d 54, 57, 58) we have disregarded this technical defect and considered the motion on the merits under the general prayer of the notice of motion for other and further relief (see Radar-Electronics, Inc. v. Oscar Leventhal, Inc., 8 A.D.2d 778, 186 N.Y.S.2d 107). It has been held by this Court that the same consequences flow from a failure to restore a case which has been dismissed under Rule 302 as upon failure diligently to...