26 PLEASE TAKE NOTICE that on the motion of the defendants to dismiss the complaint for failure to prosecute, now returnable April 25, 1935, and upon all the papers and proceedings heretofore had herein including the pleadings, a cross motion will be made at a Special Term of this Court, to be held at the Courthouse, Pearl and Centre Streets, in the Borough of Manhattan, City of New York, on the 25th day of April, 1935, at 10 A. M. on that day, or as soon thereafter as counsel can be heard, 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 for trial in its regular order, and for such other and further relief in the premises as to this Court may seem just and proper. 27 Dated, New York, April 22nd, 1935. Yours, etc., JOSEPH GANS, City of New York. Plaintiff's Notice of Cross Motion. 28 To: KIRLIN CAMPBELL Hickox KEATING & McGRANN, City of New York. Affidavit of Raymond Parmer, Read in Opposition to Plaintiff's Cross Motion. He is an attorney-at-law and member of the 30 firm of Kirlin, Campbell, Hickox, Keating & Mc Grann, attorneys for the defendants in the aboveentitled action, and that he is 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. Defendants served their answer to the said amended complaint on or about February 19, 1932, and the case was noticed for trial for the April term, 1932. Affidavit of Raymond Parmer. Plaintiff demands $25,000 damages on account 31 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 defendant. 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 time mentioned in the complaint. The defendant Grace Steamship Company admits that it owned the Steamship Charcas at the time in question, but has denied in its 32 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. The cross motion herein made in opposition to the defendants' motion to dismiss the complaint for failure to prosecute is for the purpose of having the Court restore the above-entitled action to the calendar of this Court for trial. On January 14, 1935, pursuant to a motion made by the defendants this Court directed that the action be marked “stayed” on the calendar 33 records of this Court until certain costs owed by the plaintiff to the defendant should be paid. Up to the present time the costs have not been paid and the stay has not been lifted. These costs have been owing since April, 1933, and the obligation to pay the costs was incurred by reason of various motions and appeals. The attention of the Court is respectfully referred to Section 1520 of the Civil Practice Act wherein it is provided “where costs of a motion * * * directed by an order to be paid are Affidavit of Raymond Parmer. 34 not paid within the time fixed for that purpose by the order, or, if any time is so fixed, within ten days after service of a copy of the order, * all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed without further direction of the Court until payment thereof." This is a statutory requirement mandatory in nature and does not allow any discretion on the part of the Court until such costs which are owing have been paid by the party owing the same. After the costs have been paid then it is 35 within the discretion of the Court whether the case should be restored to the calendar or not. The attention of this Court is also directed to the fact that on January 14, 1935, a stay was ordered by this Court whereby this action was marked stayed on the calendar records of the Court and further staying the plaintiff from proceeding with the trial until the costs already accrued against the plaintiff were paid by the plaintiff to the defendants. The calendar number of this action is No. 2957. Since the action was stayed younger issues have been reached and 36 tried in the regular order by this Court. WHEREFORE, deponent respectfully prays that the cross motion of the plaintiff herein be denied and the original motion to dismiss the complaint for failure to prosecute be granted thereby dismissing the above-entitled action for failure to prosecute. RAYMOND PARMER. (Sworn to April 24, 1935.) Affidavit of Rosa Sanchez, Read in Opposition to Defendants' Motion and in Support of Plaintiff's Cross Motion. 37 SUPREME COURT, NEW YORK COUNTY. [SAME TITLE.] CITY AND COUNTY OF NEW YORK, ss.: RosA SANCHEZ, being duly sworn, says: 38 I am the above-named plaintiff, and make this affidavit in opposition to defendants' motion to dismiss the complaint for plaintiff's failure to prosecute, and in support of my cross motion to restore the above-entitled action for trial for a day certain, and for such other and further relief as to the Court may seem proper. The action is for damages sustained by reason of the death of my brother, Francisco Sanchez, caused solely through the negligence of the defendants. Heretofore, issue was duly joined herein, and the case was duly placed upon the Trial Term Calendar of this Court, to be tried when reached in its regular order. In the interim, Edward Rager Akselrad, the attorney who was appearing in my behalf at the time, obtained an order for an examination before trial. The defendants appealed therefrom to the Appellate Division of this Department. The order granting the examination before trial was reversed and costs were taxed against me in the sum of about One Hundred ($100.00) Dollars. 32 |