Moebus v. Paul Tishman Co. , 5 A.D.2d 786 ( 1958 )

In an action to recover damages for personal injuries based, inter alia, on a claim of negligence, the appeal is from an order denying appellants' motion to dismiss the complaint, in which respondent Horn Construction Co. joins, and to dismiss respondent Horn’s cross complaint against the appellants, for lack of diligent prosecution, and to sever the action as to defendant Paul Tishman General Contractor, Inc. Order reversed, with $10 costs and disbursements, and motion granted to the extent of dismissing (1) the complaint as to appellants and respondent Horn Construction Co. and (2) dismissing the cross complaint. In view of the failure of respondent Moebus to set forth any facts showing merit in his action or excusing his delay in the prosecution thereof, it was an improvident exercise of discretion by the learned Special Term to have denied the motion (Brassner Mfg. Co. v. Consolidated. Edison C. of N. Y., 1 A D 2d 840; Fast v. Meenan Oil Co., 1 A D 2d 889).

Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.