Opinion
July 15, 1963
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by defendant from an order of the Supreme Court at Special Term which granted plaintiffs' motion to modify a prior order of the court conditionally dismissing the complaint for failure to prosecute the action. It does not appear upon the record before us that the failure to show merit to the plaintiffs' action was raised by defendant in opposition to the motion to modify the prior order of dismissal. In the circumstances presented we think that Special Term did not improvidently exercise its discretion. ( Salvaggio v. California Packing Co., 12 A.D.2d 557.) Order unanimously affirmed, without costs.