People ex rel. Weiss v. Boyland

Where an action has been dismissed as a result of being marked “off” and not restored within one year (Rules Civ. Prae., rule 302, subd. 2), the court may nevertheless grant relief to the defaulting party if justifiable circumstances are shown (Adriance v. Clifford, 278 App. Div. 735, 736). We believe such circumstances have been shown here and that relator’s default should be opened and the proceedings restored to the calendar. Long after the 739 expiration of the one-year period for restoration, the city consented to consolidation of the tax years involved herein with proceedings for subsequent years. In reliance thereon, relator prepared for the trial of the entire consolidated case. Obviously there was never any thought or intent to abandon the earlier proceedings which had been marked “ oft ” pending negotiations for settlement. Accordingly the order appealed from, insofar as it denied the cross motion to vacate the default and restore to the calendar unanimously reversed and the motion granted, and the order, insofar as it grants the motion to strike from the calendar, unanimously reversed and the motion denied, without costs. Settle order on notice. Concur — Peck, P. J., Rabin, Frank, McNally and Bergan, JJ.