
    LARSEN v. O’REILLY et al.
    United States District Court S. D. New York.
    June 1, 1951.
    Shatter & Shatter, New York City, for plaintiff.
    McCarthy & McGrath, New York 'City, for defendant J. R. O’Reilly.
   CONGER, District Judge.

Motion to dismiss, complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

A previous action between the same parties and based on the same cause of action was dismissed in this Court on December 20, 1950 for failure to prosecute. On January 16, 1951 a motion made by the plaintiff to restore the action to the calendar was denied.

Pursuant to Rule 41(b) of the F.R.C.P. the dismissal operated as an adjudication on the merits. The present action, therefore may not be instigated.

Section 23 of the New York Civil Practice Act may not be invoked to aid plaintiff. Even if it does apply by its very terms it does not give plaintiff the right to bring this new action. Loomis v. Girard Fire & Marine Insurance Co., 256 App.Div. 443, 10 N.Y.S.2d 283.

Motion granted.

Settle order.  