SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
June 27, 1968
JAMES L. HORN, RESPONDENT,
ELBERT R. COOLEY, APPELLANT
Appeal from an order of the County Court, entered December 1, 1967 in Schenectady County, which granted an order to resettle a record on appeal.
Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli JJ., concur in memorandum by the court.
Memorandum by the Court. On March 3, 1967 defendant moved to dismiss the complaint for unreasonable neglect in prosecuting the action. The motion was heard on March 17, 1967 and an order denying the motion was made on March 27, 1967. No affidavit of merits was submitted upon the argument of the motion or served upon appellant's attorney. Defendant appealed from the order and upon a motion made by plaintiff to resettle the record on appeal, the court below granted an order correcting the record to include a purported affidavit of merits. While the affidavit may have been handed to the court, no one disputes the defendant's contention that it was never served on him. The granting of the motion to resettle was clearly error.
Order reversed, on the law and the facts, and motion denied, without costs.
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