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Schuman v. Hertz Corporation

Court of Appeals of the State of New York
Feb 24, 1966
215 N.E.2d 683 (N.Y. 1966)

Summary

In Schuman v Hertz Corp. (17 N.Y.2d 604), the intent of the trial court in dismissing the action was the only factor considered by the Court of Appeals. The Court wrote that "[t]he record before us indicates that the dismissal of the original suit was not intended by the Justice presiding to be a dismissal for neglect to prosecute.

Summary of this case from Andrea v. Arnone

Opinion

Argued January 13, 1966

Decided February 24, 1966

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, PETER A. QUINN, J.

Irving Malchman for appellant.

Stanley Roth for respondents.


MEMORANDUM. The order of the Appellate Division is reversed, without costs, and the matter is remitted to Supreme Court, Bronx County, for further proceedings. The record before us indicates that the dismissal of the original suit was not intended by the Justice presiding to be a dismissal for neglect to prosecute. We call particular attention to the fact that the same Justice who dismissed the original action also denied defendant's motion to dismiss this complaint on the grounds that the original one had not been dismissed for neglect to prosecute. Since this action was timely commenced, it is within the saving provisions of CPLR 205.

Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE, SCILEPPI, BERGAN and KEATING concur.

Order reversed, without costs, and matter remitted to the Supreme Court for further proceedings in accordance with the memorandum herein.


Summaries of

Schuman v. Hertz Corporation

Court of Appeals of the State of New York
Feb 24, 1966
215 N.E.2d 683 (N.Y. 1966)

In Schuman v Hertz Corp. (17 N.Y.2d 604), the intent of the trial court in dismissing the action was the only factor considered by the Court of Appeals. The Court wrote that "[t]he record before us indicates that the dismissal of the original suit was not intended by the Justice presiding to be a dismissal for neglect to prosecute.

Summary of this case from Andrea v. Arnone

In Schuman, the trial court dismissed the complaint when plaintiff's counsel declined to pick a jury, but indicated that the dismissal "would not be the end of the lawsuit" (supra, p 605) since the case could thereafter be "restored" within one year under section 23 of the Civil Practice Act (now six months under CPLR 205). Under these circumstances, the Court of Appeals stated (supra, p 605): "The record before us indicates that the dismissal of the original suit was not intended by the Justice presiding to be a dismissal for neglect to prosecute."

Summary of this case from Jones v. Brown
Case details for

Schuman v. Hertz Corporation

Case Details

Full title:RUTH SCHUMAN, as Administratrix of the Estate of HENRY SCHUMAN, Deceased…

Court:Court of Appeals of the State of New York

Date published: Feb 24, 1966

Citations

215 N.E.2d 683 (N.Y. 1966)
215 N.E.2d 683
268 N.Y.S.2d 563

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