Benjamin v. Chock Full of Nuts, Inc.

Order, entered on June 28, 1962, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant. Present j counsel states that former counsel of record was erroneously given the impression that the note of issue had been filed during the time of his illness, and advances as a further explanation the failure of the plaintiff to deposit the necessary filing fee for a note of issue. These are insufficient excuses to| justify a failure to diligently prosecute for 18 months after issue was joined. Inadvertence under such circumstances has been held to be an inadequate excuse (Goldfarb v. Mallin, 3 A D 2d 735). Moreover, if plaintiff was unable to advance the filing fee the remedy was to apply to sue as a poor person rather than delay the prosecution of the action. (Granich v. Stolovitz, 270 App. Div. 899; Tuttle v. Dubuque Fire & Marine Ins. Co., 155 App. Div. 802; Kachel v. Stutz, 137 App. Div. 199.) Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.