Opinion
March 12, 1957
This is an appeal from an order denying a motion to dismiss the complaint for failure to prosecute. The accident occurred on October 3, 1953. The summons and complaint were served on July 2, 1954. The plaintiff received the answer and a demand for a bill of particulars on August 12, 1954, but has never complied with the demand. The motion to dismiss was made on October 10, 1956, and it was only then that a belated note of issue for a nonjury trial was filed. On this appeal no brief was filed within the time specified by the rules. The excuse that the failure to file a note of issue was inadvertent is most unimpressive. From its inception, the processing of this action indicates a disregard of the rules promulgated for the proper disposition of litigation. Procedural provisions and court rules are not enacted to be honored in their breach. Order unanimously reversed, with $20 costs and disbursements to the appellants, and the motion granted, and the clerk is directed to enter judgment in favor of the defendants Edward J. Mallin and Marvin S. Winter, as Trustees under a Trust Agreement, against the plaintiff Benjamin Goldfarb, dismissing the complaint, herein, with costs, for failure to prosecute.
Concur — Peck, P.J., Rabin, Frank, McNally and Bergan, JJ. [See post, p. 833.]