Endresen v. City of New York , 1 A.D.2d 1029 ( 1956 )

In an action to recover damages for personal injuries, an order dated August 31, 1956, dismissed the complaint for lack of prosecution. By an order dated October 3, 1955, a motion for reargument on additional facts was granted, but the original decision was adhered to. The appeal is from the order dated October 3, 1955, insofar as it adhered to the original decision. Order modified by striking from the ordering paragraph everything following the words “ upon reargument ”, and by substituting therefor the words “the motion to dismiss the complaint is denied. ” As so modified, order, insofar as appealed from, affirmed, without costs. In our opinion, appellant has presented a showing of merits and a reasonable excuse for the delay. Under such circumstances, the dismissal for lack of prosecution was an improvident exercise of discretion. Beldock, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.