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TENNEY v. ROSENTHAL

6 A.D.2d 510 (1958)

Warren S. Tenney, Suing as a Director of New York Water Service Corporation, Appellant, v. Richard L. Rosenthal et al., Respondents, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, First Department.

November 25, 1958.

Attorney(s) appearing for the Case

Milton Pollack of counsel (Warren S. Tenney, in person, and Samuel N. Greenspoon with him on the brief; Milton Pollack and Marshall, Bratter, Greene, Allison & Tucker, attorneys), for appellant.

Jesse Climenko of counsel (Martin I. Shelton with him on the brief; Gallop Climenko & Gould, attorneys), for New York Water Service Corporation and another, respondents.

Fowler Hamilton of counsel (Leonard S. Sheriff and Sedgwick W. Green with him on the brief; Cleary, Gottlieb, Friendly & Hamilton, attorneys), for Richard L. Rosenthal and others, respondents.

BREITEL, J. P., RABIN, McNALLY, STEVENS and BASTOW, JJ., concur.

Per Curiam.

The question presented on this appeal is whether the order and judgment dismissing the complaint herein were properly grounded on subdivision 2 of rule 107 of the Rules of Civil Practice, or section 82 of the Civil Practice Act, either because of plaintiff's incapacity to prosecute this action or because the action abated.

It appears that since the commencement of this action plaintiff failed of...

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