Tuttle v. Dubuque Fire & Marine Insurance of Dubuque
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, the Dubuque Fire and Marine Insurance Company of Dubuque, Iowa, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 31st day of December, 1912, dismissing the plaintiff’s complaint for neglect to proceed with the action unless plaintiff procure from the referee a designation of the time on' or before April 1, 1913, and a place for hearing and notice the cause…
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Appeal by the defendant, the Dubuque Fire and Marine Insurance Company of Dubuque, Iowa, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 31st day of December, 1912, dismissing the plaintiff’s complaint for neglect to proceed with the action unless plaintiff procure from the referee a designation of the time on' or before April 1, 1913, and a place for hearing and notice the cause for trial before the referee before such date. The appeal is from that portion of the order which permits the plaintiff to…
1Dissent
McLennan, P. J. (dissenting):
I dissent and vote for affirmance of the order. A motion of this kind is addressed to the discretion of the court at Special Term, and its determination should not be disturbed on appeal unless it is clear that the discretion of the court has been abused. Even though upon the motion papers the case was a proper one for the court to dismiss had it seen fit so to do, yet, in my opinion, there were sufficient grounds to warrant the court, in the exercise of its discretion, to deny the motion upon proper conditions, giving the plaintiff the right to bring the action…
2Cases cited1 opinion
- Graham v. AckleyAppellate Division of the Supreme Court of the State of New York · 1897