Order Appealed From. 10 Upon reading and filing the notice of motion dated April 11, 1935, the affidavit of Raymond Parmer, verified April 11, 1935, in support of the motion made by the defendants to dismiss the above-entitled action, and the affidavit of Rosa Sanchez, duly verified April 26th, 1935, and the notice of motion dated April 22, 1935, in opposition to said motion to dismiss, and in support of plaintiff's motion to restore the case to the trial calendar of this Court, and the reply affidavit of Raymond Parmer, verified April 28th, 1935, and the reply affidavit of Rosa Sanchez, 11 duly verified May 1, 1935, and after hearing Kirlin, Campbell, Hickox, Keating & McGrann, Esqs., attorneys for the defendants, in support of the motion to dismiss this action, and Joseph Gans, appearing in behalf of the plaintiff, in opposition thereto, and after hearing Joseph Gans, appearing in behalf of the plaintiff, in support of the motion to restore the same to the calendar, and Kirlin, Campbell, Hickox, Keating & McGrann, Esqs., attorneys for the defendants, in opposition thereto, and due deliberation having been had thereon, 12 Now, on motion of Joseph Gans, appearing in behalf of the plaintiff, it is ORDERED that the motion made by the defendants to dismiss the above-entitled action be and the same is hereby denied in all respects, and it is further ORDERED that the motion made in behalf of the plaintiff for an order restoring the above-entitled action to the calendar of this Court for trial, on a day certain, so that the same may be reached Order Appealed From. 13 for trial and tried in its regular order, be and the same is hereby granted in all respects, and it is further ORDERED that the Calendar Clerk of this Court is hereby directed and required to restore the trial of this action to the day calendar of this Court for the 10th day of June, 1935, and it is further ORDERED that the stay heretofore granted herein, staying the plaintiff from proceeding with the trial herein until the costs accrued against 14 the plaintiff have been paid to the defendants, be and the same is hereby vacated and set aside. PLEASE TAKE NOTICE that upon the annexed affidavit of Raymond Parmer, sworn to the 11th day of April, 1935, and upon all the pleadings and proceedings heretofore had herein, we shall move this Court, at a Special Term, Part I thereof, Defendant's Notice of Motion. 16 to be held at the County Court House, in the Borough of Manhattan, City of New York, on the 18th day of April, 1935, at 10 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order dismissing the complaint for plaintiff's failure to prosecute. And for such other, further and different relief as may be just. Dated, New York, April 11, 1935. Yours, etc., 17 KIRLIN CAMPBELL Hickox KEATING & McGRANN, Attorneys for Defendants, City of New York. To: EDWARD RAGER AKSELRAD, Esq., New York, N. Y. 18 JOSEPH GANS, New York, N. Y. Affidavit of Raymond Parmer, Read in Support of Defendants' Motion. 19 20 I am an attorney-at-law and a member of the firm of Kirlin, Campbell, Hickox, Keating & McGrann, attorneys for the defendants herein, and I am familiar with all the pleadings and proceedings heretofore had herein. This action was begun on or about April 24, 1930, by the service of a summons and complaint. On or about January 7, 1932, an amended complaint was served. On or about February 19, 1932, the defendant served its answer to the said amended complaint. The case was noticed for trial for the April Term, 1932. The action now bears calendar No. 2957. The plaintiff demands $25,000 damages on account of the death of her brother, which is alleged to have taken place on October 29, 1929, while he was employed on board the steamship Charcas, which is alleged to have been owned and operated by the defendants. It is claimed that the defendants were negligent. The defendant W. R. Grace & Company in its answer has denied that it owned or operated the steamship Charcas at the times mentioned in the complaint. The defendant Grace Steamship 21 Affidavit of Raymond Parmer. 22 Company admits that it owned the steamship Charcas at the time in question, but has denied in its answer that it operated or controlled the vessel at that time. Both defendants have denied that there was any negligence on their part causing the death of the plaintiff's brother. On January 14, 1935, pursuant to a motion made by defendants, this Court directed that the action be marked “stayed” on the calendar records of the Court until certain costs owed by the plaintiff to the defendants should be paid. Up to the present time the costs have not been 23 paid and the stay has not been lifted. These costs had been owing since April, 1933, and the obligation to pay the costs was incurred by reason of various motions and appeals. Since the action was stayed younger issues have been reached and tried in their regular order by this Court. WHEREFORE, I respectfully pray that the aboveentitled action be dismissed for failure to prosecute. RAYMOND PARMER. (Sworn to April 11, 1935.) |