Zoellner v. Neumann

¶1Order entered on June 16, 1960, denying plaintiff’s motion to vacate the stay of trial of this cause and granting defendants’ cross motion to dismiss this action for failure to prosecute, unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs, the motion granted and the cross motion denied. The stay of the trial, pending the return of the commission on the written interrogatories directed to the witness in Holland, prevented the trial of this cause. It would appear neither party for a substantial period thereafter was aware of the return of the commission. The nature of the action, and the absence of any claim of prejudice to the defendants, in the circumstances, move the court to exercise its discretion towards the end of a prompt disposition on the merits. Settle order on notice. Concur — Botein, P. J., Rabin, McNally and Stevens, JJ.