Kegel v. Ira S. Bushey & Sons, Inc. , 4 A.D.2d 785 ( 1957 )

In an action to recover damages for wrongful death and for conscious pain and suffering, the appeal is from an order denying a motion to dismiss the complaint for lack of prosecution on condition that respondent file a note of issue for the next available term. Respondent complied with that condition. Order affirmed, with $10 costs and disbursements. No opinion. Nolan, P. J., Hallinan and Kleinfeld, JJ., concur. Wenzel and Ughetta, JJ., dissent and vote to reverse the order and to grant the motion, with the following memorandum: In our opinion respondent unreasonably delayed in prosecuting this action. The excuse offered is inadequate and untenable.