Marean v. Scheepers , 237 A.D. 829 ( 1932 )

The decision of this court handed down on December 2, 1932, is hereby amended to read as follows: Order reversed on the law and the facts, with ten dollars costs and disbursements, and defendant’s motion to dismiss the complaint for lack of prosecution granted, with ten dollars costs. In our opinion the plaintiffs’ delay in not restoring the cause to the trial calendar between February, 1926, and September, 1932, was unreasonable and unjustifiable. Upon consent of defendant his counterclaim is dismissed, without costs. Lazansky, P J., Young, Scudder and Tompkins, JJ., concur; Kapper, J., dissents and votes to affirm. [See ante, p. 825.]