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
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.