
    Harry S. Samuels, Appellant, v. Alexander P. Hirsch et al., Respondents.
   In an action to recover commissions for services rendered as a finder in connection with a corporate merger, the plaintiff appeals: (a) from an order of the Supreme Court, Queens County, dated July 2, 1963, which granted defendants’ cross motion to dismiss the complaint for plaintiff’s failure to diligently prosecute the action (Civ. Prac. Act, § 181; Rules Civ. Prae., rule 156), and which denied plaintiff’s motion to continue his pretrial examination of the defendants; and (b) from a judgment of said court entered July 29, 1963 upon said order, dismissing the complaint. Order reversed, with $10 costs and disbursements; judgment vacated; defendants’ cross motion to dismiss the complaint denied; and plaintiff’s motion to continue his pretrial examination of the defendants granted. The examination shall proceed on 10 days’ written notice or at such time and place as the parties may mutually agree by written stipulation. In our opinion, under all the circumstances it was an improper exercise of discretion to grant the cross motion to dismiss the complaint for failure to diligently prosecute the action. Any neglect on plaintiff’s part was acquiesced in by defendants. [For prior appeal in this action, see Samuels v. Hirsch, 12 A D 2d 823.] Beldoek, P. J., Ughetta, Iileinfeld, Brennan and Hill, JJ., concur.  