Headley v. Noto

This appeal, here by our leave, requires us to determine the consequences of a trial court’s prior dismissal of a *3complaint “ on the merits ” predicated upon a plaintiff’s failure to appear at the trial.

Prior to the institution of this action by the plaintiffs, Noto had himself commenced an action pursuant to former article 15 of the Real Property Law (now Real Property Actions and Proceedings Law, art. 15). When that action was reached for trial, Noto (as plaintiff in that action) did not appear and the action was dismissed. Thereafter, on June 12, 1964, he moved to open his default. This…