Kallman v. Wolf Corp.

¶1— Order entered on September 26, 1962, denying defendants-appellants motion to dismiss for lack of prosecution, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to defendants-appellants, and the motion granted, with $10 costs. Plaintiff, if he be so advised, may move within 30 days from the service of the order entered herein to vacate the dismissal on a proper affidavit of merits. In the light of this record and the nature of the companion action, it may well be that the inaction or delay is excusable. Nevertheless, to be relieved of the consequence of failure to prosecute, plaintiff, in addition, is required to submit an affidavit of merits. (Ruderman v. Feffer, 10 A D 2d 704; Be Long Gorp. v. J. Rich Steers, Inc., 10 A D 2d 705.) Concur — Breitel, J. P., Rabin, McNally, Eager and Bastow, JJ.