Majority
p. 784Arthur R. Beal, Respondent, v. Thomas L. Byrnes and Another, Appellants, and Thomas M. McMahon, Defendant.
Order dismissing action for neglect to prosecute modified by striking out the words “ unless the action is noticed for trial and a note of issue filed by the plaintiff for the May, 1934, term,” and as so modified affirmed, with ten dollars costs and disbursements to defendants Byrnes. The death of defendant McMahon who, it is shown, was the broker who brought about the sale and was, therefore, a material witness, required, in the circumstances, a granting of the motion to dismiss the action for neglect to prosecute. Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur.