Majority
Action pursuant to section 29 of the Workmen’s Compensation Law by an insurance carrier, paying benefits to an employee of its insured, to recover damages for personal injuries of the employee alleged to have been sustained as the result of negligence and malpractice. The appeal is (1) from an order entered January 23, 1958 dismissing the complaint as against respondent for failure to prosecute, (2) from so much of a resettled order entered August 28, 1958 as on rehearing the motion to dismiss the complaint denied a motion to vacate the order and the judgment entered on said order, and (3) from said judgment. Issue was joined November 2, 1953 and the motion to dismiss was made more than 49 months after such joinder of issue. Order entered January 23, 1958, resettled order entered August 28, 1958 insofar as appealed from, and judgment unanimously affirmed, with $10 costs and disbursements. No opinion. Present — Beldoek, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ.