Jupiter Express & Cargo Agency, S. A., Respondent, v. L. & S. Fruit & Produce, Inc., Appellant, 21 A.D.2d 768

Order, entered on March 4, 1964, denying defendant’s motion to dismiss the complaint for lack of prosecution, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs. No adequate excuse has been given for the delay or for the failure to submit an affidavit of merits. (Sortino v. Fisher, 20 A D 2d 25.) Further, plaintiff has failed to proceed with the commission to take the testimony of its president in Cuba although authorized to do so on June 28, 1962. Concur — Botein, P. J., McNally, Eager, Steuer and Staley, JJ.