
    Sidney Heller, Respondent, v. Josephthal & Company, Appellant.
   Order, entered on May 22, 1964, denying defendant’s motion to dismiss the action for rescission because of failure to prosecute, unanimously reversed on the law, the facts, and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs.. The action was commenced March 21, 1960 and issue joined on April 21, 1960. Pretrial examinations were completed in November, 1960. A note of issue for the June 1961 Term was served but not filed. Nothing has been done since that time. The alleged excuse for delay is that the firm handling plaintiff’s case was dissolved in 1961 and the file misplaced. The action seeks to rescind a sale of stock which plaintiff claims he bought on defendant’s representation that they had inside information that the stock would go up. The stock was purchased at 19 and was selling at lQ1/^ at the time the note of issue was served. No substantial reason is submitted for the delay, and the affidavit of merit is insufficient. The motion to dismiss should have been granted. (See Sortino v. Fisher, 20 A D 2d 25.) Concur — Botein, P. J., Breitel, Valente, Stevens and Eager, JJ.  