Opinion
February 21, 1963
Order, entered on June 28, 1962, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant. Present counsel states that former counsel of record was erroneously given the impression that the note of issue had been filed during the time of his illness, and advances as a further explanation the failure of the plaintiff to deposit the necessary filing fee for a note of issue. These are insufficient excuses to justify a failure to diligently prosecute for 18 months after issue was joined. Inadvertence under such circumstances has been held to be an inadequate excuse ( Goldfarb v. Mallin, 3 A.D.2d 735). Moreover, if plaintiff was unable to advance the filing fee the remedy was to apply to sue as a poor person rather than delay the prosecution of the action. ( Granich v. Stolovitz, 270 App. Div. 899; Tuttle v. Dubuque Fire Marine Ins. Co., 155 App. Div. 802; Kachel v. Stutz, 137 App. Div. 199.)
Concur — Rabin, J.P., McNally, Stevens, Eager and Steuer, JJ.