222 A.D. 652 | N.Y. App. Div. | 1927
While the order appealed from is in the interest of substantial justice, it must be reversed because it contravenes the provisions of the Civil Practice Act and the rules. (Civ. Prae. Act, § 433; Rules Civ. Prac. rule 150.) In the event that the plaintiff does not act with reasonable dispatch, the respondents will be entitled to relief under section 123 of the Civil Practice Act. We are unable to glean from the complaint any reason why the defendants Bond and Arms were made parties defendant. The complaint is verified by the defendant Bond and the respondents may well hereafter be entitled to assert that the failure to effect service on and to receive an answer from the respondents Bond and Arms affords no valid reason why the plaintiff should not promptly notice this case for trial. This reversal should be deemed without prejudice to any remedies that the respondents may hereafter assert to secure an immediate trial of this case, or in the alternative seek the cancellation of the notice of pendency of action under the provisions of section 123 of the Civil Practice Act.' It should not be construed by the respondents as any intimation that this court does not believe that the duty rests upon the appellant to bring this cause on for trial at the earliest possible moment and should be without prejudice to the right of the respondents to move for preference as soon as the ease has been noticed for trial. The order so far as appealed from should be reversed and defendants’ motion denied, without costs. Present — Dowling, P. J., Merrell, Finch, MeAvoy and Proskauer, JJ. Order so far as appealed from reversed, without costs, and motion denied. Settle order on notice.
