Atkinson v. Lo Conti (24 A.D.2d 757, 1965)

In an action by an executor to (a) declare void and cancel of record a purported deed executed by his testator, (b) impress a trust upon the proceeds of the sale of testator’s property, and (e) recover damages, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered July 6,1965, which dismissed the complaint, with prejudice, because of plaintiff’s failure to continue the trial of the action. Judgment reversed, without costs, and action restored to the calendar for trial on condition that plaintiff shall pay to defendants $100. The dismissal of the action was an improvident exercise of discretion in view of the seriousness of the allegations of the complaint, the willingness of plaintiff to proceed to trial the following week, and the unavailability of trial counsel, who was in possession of the papers and records necessary for the trial of the action. Nevertheless, under the circumstances disclosed by the record, defendants are entitled to be reimbursed to the extent of $100 for the extra expense and work to which they and their attorney have been put by plaintiff’s failure promptly to advise the court of the reason for the requested adjournment. Payment of this sum should be made before the judgment of dismissal is vacated and the action restored for trial (see Solomon v. Terlizzi, 15 A D 2d 802). Beldoek, P. J., Ughetta, Rabin, Hopkins and Benjamin, JJ., concur.