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Affidavit of Rosa Sanchez.

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Thereafter a motion was made for an order of substitution, substituting Joseph Gans, Esq., as my attorney in the place and stead of Edward Rager Akselrad.

On January 14, 1935, the defendants obtained a stay on the calendar records of the Court. The order for a stay reads in part:

“Ordered that the motion for an order provided that the above action be marked stayed on the calendar records of this Court * * * is in all respects granted.”

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Plaintiff's instant request for a dismissal of the action on the alleged ground of “lack of prosecution” is most inconsistent. The above quoted terms of the order staying the action obviously stays the defendants from making the instant motion as well.

The defendants, having taken the affirmative step of moving to dismiss for lack of prosecution, have waived their right to a stay.

It would be a grave injustice to permit the plaintiff first to obtain a stay on a technicality and then follow this stay with a motion to dismiss.

It is respectfully submitted that the motion for the dismissal should be denied, as not by the greatest stretch of the imagination can it possibly claim that I am guilty of lack of prosecution.

I respectfully ask the Court to restore the above-entitled action for trial for a day certain.

I am an elderly woman, run down in health, utterly penniless and destitute. My deceased brother Francisco was my sole source of subsistence and support. I do not have any funds Affidavit of Rosa Sanchez.

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or monies whatever, not even sufficient to meet the demands for the bare necessities of life. I have no relatives or friends to turn to for help. I most earnestly plead with this Court to permit me to obtain a trial on the merits. My brother was killed as a result of the negligence of the defendants.

For the foregoing reasons, I respectfully ask that defendants' motion to dismiss for lack of prosecution be denied with costs, and my cross motion to have the case restored to trial for a day certain, and the stay entered herein, be vacated in all respects, and for such other and further relief as to the Court may seem proper.

ROSA SANCHEZ.

(Sworn to April 26, 1935.)

Replying Affidavit of Raymond Parmer, Read in Support of Defendants' Motion and in

Opposition to Plaintiff's Cross Motion.

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I am an attorney at law and a member of the firm of Kirlin, Campbell, Hickox, Keating & McGrann, attorneys for the defendants herein.

Replying Affidavit of Raymond Parmer.

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I have read the affidavit of the plaintiff which has been submitted in opposition to the motion made by the defendants to dismiss the above action, on account of failure to prosecute. It is apparent that the plaintiff misapprehends the true situation.

The plaintiff is stayed from proceeding with this matter by virtue of Section 1520 of the Civil Practice Act. By reason of that section she is stayed until she pays the costs which are owing to the defendants.

The order for a stay which was obtained by 47 the defendants on January 14, 1935, merely

recorded on the calendar records of the Court what had already taken place by virtue of Section 1520.

The defendants, therefore, are not stayed from making the present motion. It is only the party who is required to pay costs who is stayed.

The plaintiff seems to think that the defendants are inconsistent in having the action marked stayed on the calendar records and then moving to dismiss for failure to prosecute. There is no

inconsistency in this. The plaintiff is stayed 48 only because of her failure to pay costs accrued.

She can prosecute the action at any time that she wishes to pay the costs, and pays them. Her failure to prosecute consists in not paying the costs and permitting the stay to remain.

Perhaps it is the plaintiff's intention to let the stay continue indefinitely, and to keep the action alive during such indefinite time. This, of course, is not permissible. The plaintiff may have her day in Court if she will pay the costs and prosecute the action. She has no right to neglect the payment of costs and thereby prevent the action ever being reached.

Replying Affidavit of Raymond Parmer.

49 There are remarks near the end of the plaintiff's affidavit with regard to her present financial condition. Strictly speaking, they are irrelevant to the matter which is before the Court. However, if they are to be considered at all, we ask the Court to consider the following facts:

According to the investigation made by the attorneys for the defendants the brother of the plaintiff, for whose death the plaintiff is suing, was married at the time of his death. His wife lived in a country in South America. He also left him surviving two children.

A sum of money has already been paid to the 50 widow and the children, as a result of which the said payees have given a general release.

The mere fact that the deceased left him surviving a wife and children means that the plaintiff, who was a sister of the deceased, has no cause of action. Any cause of action which may have arisen on account of the death of Francisco Sanchez belonged to the widow and children, and they have now settled their claim and released it.

These facts are mentioned merely to let the Court know that the action brought by the plaintiff is entirely without merit, and that it would 51 be a greater kindness to the plaintiff to dismiss the present action for lack of prosecution than to allow her to pay the costs and then continue the prosecution of a futile action.

RAYMOND PARMER.

(Sworn to April 28, 1935.)

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Answering Affidavit of Rosa Sanchez, Read in Opposition to Defendants' Motion and

in Support of Plaintiff's Cross Motion.

SUPREME COURT,

NEW YORK COUNTY.

[SAME TITLE.]

CITY AND COUNTY OF NEW YORK, Ss. :

Rosa SANCHEZ, being duly sworn, deposes and

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I am the plaintiff herein. I have been told that an affidavit has been made by Raymond Parmer, one of the attorneys for the defendants, in which he claims that my brother was married.

That claim is absolutely untrue. My brother never was married, and that is known to the defendant. He never was the father of

any children, and never lived with anyone, except that he lived with me.

If there had been any marriage to any person, the attorney making the affidavit certainly would have submitted to this Court some record showing any such alleged marriage.

I respectfully pray that in view of the fact that by making this motion, the defendant has waived the stay, that this case be restored to the calendar for trial, so that it may be tried on the merits.

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ROSA SANCHEZ.

(Sworn to May 1, 1935.)

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