This is an appeal from an order denying a motion to dismiss the complaint for failure to prosecute. The papers clearly indicate a disregard of the repeated admonition that on a motion of this kind there must be a substantial demonstration of a valid excuse or a justification for the failure to proceed expeditiously with the action, and, in addition, there must be an affidavit of merits by the plaintiff. (See Rist v. 234 East 33rd Gorp., 4 A D 2d 867; Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942; Davis v. Cunard S. S. Co., 284 App. Div. 1036; Cooper v. Schnabolk, 283 App. Div. 937.) These requirements may not be ignored with impunity, nor will the courts acquiesce in a perfunctory compliance. The order denying the motion to dismiss is reversed on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion is granted, with leave, however, to the plaintiff, upon the payment of a full bill of costs to date in addition to costs and disbursements on appeal, to move at Special Term to vacate the order of dismissal within 30 days after the service of a copy of the order with notice of entry. The motion to vacate the order of dismissal must be based upon papers containing recitals of facts in compliance with the Civil Practice Act. Settle order.
Transpacific Steamship Co. v. Marine Office of America
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