May 12, 1959
Order unanimously reversed on the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, the dismissal of the action pursuant to rule 302 of the Rules of Civil Practice is vacated, and the motion to restore the case to the calendar granted, with $10 costs. This action, to recover moneys which plaintiff claims were paid under duress, was commenced in October, 1951. Issue was joined in January, 1952. A note of issue was filed for the December 1955 Term. The defendant conducted examinations at various times through November, 1956, at which time the parties entered into a stipulation adjourning the matter to the General Jury Reserve Calendar for February, 1957. Other stipulations were signed which adjourned the examination of the plaintiff through May 13, 1957. In January, 1957, subsequent to the adoption of the statement of readiness rule, this case was marked off the calendar. In January, 1958, an order was entered dismissing the case pursuant to rule 302 of the Rules of Civil Practice. Plaintiff's attorney claims he first learned of the marking off and later dismissal in March, 1958. After failing to obtain a stipulation to restore the case to the calendar, plaintiff brought on this motion. It will be observed that there was active pretrial preparation subsequent to January, 1957 and the conduct of the plaintiff does not indicate a neglectful failure to diligently prosecute or an intention to abandon the cause. Nor does it appear that the conduct of the defendants was free from contributing to the delay. It cannot be said from the record that there is no merit to the cause of action; therefore the plaintiff should be given a further opportunity to expeditiously bring the action to trial.
Concur — Botein, P.J., Rabin, Valente and Stevens, JJ.