4 A.D.2d 949 | N.Y. App. Div. | 1957
In an action to recover damages for libel, the appeal is from (1) an order granting a motion by respondent to dismiss the complaint as to him for lack of prosecution, (2) the judgment entered thereon and (3) an order denying a motion by appellants for a rehearing on additional facts, designated by them as a motion for reargument. Order denying motion for rehearing on additional facts reversed, without costs, and motion granted; on rehearing, motion to dismiss complaint as to respondent denied, and judgment vacated. Appeal from order granting motion to dismiss complaint dismissed, without costs, as academic. The motion by appellants was in fact an application for a rehearing upon additional papers. As such, the order entered thereon is appealable and the new matter may be considered (McNees v. Scholoff, 2 A D 2d 820; Gold v. Travelers Ins. Co., 263 App. Div. 817; Webb & Knapp v. United Cigar-Whalen Stores Corp., 276 App. Div. 583). In our opinion, appellants have presented a showing of merits and a reasonable excuse for the delay. Under the circumstances, it was an improvident exercise of discretion to deny them their day in court. Beldock, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.
