James Griffin, Respondent, v. Camp Taconic, Inc., Appellant, 20 A.D.2d 630

Order entered May 14, 1963, granting plaintiff’s motion to mark the case “ Off the Calendar” and denying defendant’s cross motion to dismiss for plaintiff’s failure to proceed to trial, unanimously modified, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, to the extent of permitting the withdrawal of the case from the calendar only on condition that plaintiff, within 30 days from the service of a copy of the order to •be entered herein, shall pay the costs of the appeal and pay the taxable costs of the action to date which shall include the expense incurred by defendant in bringing witnesses from Massachusetts for the trial, and upon the further condition that plaintiff within 90 days after the service of a copy of the order to be entered herein, moves to restore the ease to the calendar for trial.

In the event the plaintiff fails to comply with the aforesaid conditions, the order is reversed and defendant’s motion to dismiss for failure to proceed to trial is granted, with costs to appellant. In view of the circumstances in this case, it was an improvident exercise of discretion to permit the case to be marked “ Off the Calendar” at the stage to which the cause had proceeded without the imposition of terms. Plaintiff was on notice, when the answer was served, that defendant was urging the applicability of the Massachusetts Workmen’s Compensation Statute.

Any motion to defer the trial of the ease to permit plaintiff to apply to the appropriate authority in Massachusetts for a determination of the applicability of the Massachusetts statute to the plaintiff, should have been made at an earlier time rather than after a jury had been selected in the instant suit. Therefore, if discretion was to be wisely exercised in denying defendant’s motion to dismiss, appropriate terms should have been imposed as condition to granting the relief requested by plaintiff. Settle order on notice. Concur — Breitel, J. P., Rabin, Yalente, McNally and Eager, JJ.