Opinion
December 20, 1954.
In an action to recover damages for an alleged wrongful eviction, defendant appeals from a resettled order insofar as said order granted plaintiff's motion to vacate an order dismissing the complaint for failure to prosecute, on condition that he file a note of issue and pay the fee therefor within ten days after the entry of the order. Resettled order modified by adding thereto the further condition that plaintiff pay to the defendant $75. As so modified, resettled order, insofar as appealed from, affirmed, without costs. Such payment is to be made within ten days after the entry of the order hereon. Plaintiff's delay in the prosecution of the action requires the imposition of the afore-mentioned payment. MacCrate, Beldock and Murphy, JJ., concur; Adel, Acting P.J., and Wenzel, J., dissent and vote to modify the order appealed from by striking therefrom everything following the words "herein is denied".