Bray v. Cox

Chief Judge Breitel

(dissenting). I dissent and would reach the merits of the appeal. The dismissal of an appeal for failure to prosecute is neither an affirmance, the equivalent of an affirmance, nor a determination of the merits (Drummond v Husson, 14 NY 60, 61). The law is well-established for the longest time in this State, and elsewhere, that the dismissal of an appeal for failure to prosecute is not on the merits and does not bar a second and later properly-taken appeal (Crafts v Ives, mot to dismiss app den NY Court of Appeals, Oct. 13, 1852 [referred to in Marshall v Milwaukee & St.…