Ernest Klein, Appellant, v. Weingarten & Co. et al., Respondents; Ernest Klein, Appellant, v. Bonnie W. Lass, as Administratrix of the Estate of Herman Lass, Deceased, et al., Respondents

Ernest Klein, Appellant, v Weingarten & Co. et al., Respondents. Ernest Klein, Appellant, v Bonnie W. Lass, as Administratrix of the Estate of Herman Lass, Deceased, et al., Respondents. [MAJORITY] In an action inter alia to recover damages for fraud, plaintiff appeals from three orders of the Supreme Court, Kings County, as follows: (1) as limited by his brief, so much of an order dated May 13, 1974, as dismissed the complaint against defendants Weingarten & Co. and Mabon, Nugent & Co.; (2) an order dated November 10, 1975, which struck the action as against defendant Sonn from the calendar; and (3) an order dated March 3, 1976, which dismissed the action as against defendants Lass and Sonn for failure to prosecute. Order dated May 13, 1974 affirmed insofar as appealed from, and orders dated November 10, 1975 and March 3, 1976 affirmed, with one bill of $50 costs and disbursements jointly to respondents. Upon the facts presented herein, Special Term properly dismissed the action (1) as against defendants Weingarten & Co. and Mabon, Nugent & Co., based upon the prior State action and (2) as against the remaining defendants, for failure to prosecute. Gulotta, P. J., Hopkins, Latham, Cohalan and Hawkins, JJ., concur.