Mildred Hammond et al., Appellants, v. City of New York, Respondent, 20 A.D.2d 877

Order entered December 20, 1963, denying plaintiffs’ motion to open their default and to vacate the dismissal of their complaint, and the judgment entered November 27, 1963, dismissing the complaint for failure to proceed to trial, unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs, the motion to vacate the dismissal and the judgment thereon granted and the action is ordered restored to its proper place on the Ready Personal Injury Jury Calendar, Supreme Court, Bronx County.

It was an improvident exercise of discretion on the part of the trial court to mark the cause peremptorily against plaintiffs in the first instance and subsequently to dismiss the complaint when an unqualified affidavit of serious illness was presented on behalf of the attorney for the plaintiffs. In the circumstances a further adjournment of the cause was indicated. Concur — Breitel, J. P., McNally, Eager, Steuer and Staley, JJ.