Opinion
June 24, 1965
Order and judgment appealed from unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs and without disbursements, and the motion to dismiss for failure to prosecute denied, with $10 costs. While the delays in this action are hardly excusable, the related appeal involving the merits suggests a reversal of the dismissal of this action. The record on that appeal has been examined and it appears that, in the interest of justice, the issues should be explored by trial rather than by the cursory affidavits submitted by both sides. Such trial should proceed promptly or defendant is privileged to renew its motion.
Concur — Botein, P.J., Breitel, McNally, Stevens and Eager, JJ.