
    Theodore Mastracola, Respondent, v. Freight Terminal Realty Corporation, Appellant.
    Supreme Court, Appellate Term, Second Department,
    June 24, 1958.
    
      Samuel S. Sturim for appellant.
    
      Anthony J. Kali and Kenneth W. Beesting for respondent.
   Per Curiam.

The order should be unanimously reversed upon the law and facts, with $10 costs to the defendant, and plaintiff’s motion to open his default and to vacate the order dismissing the action and the judgment entered thereon denied, with leave to the plaintiff, if he be so advised, to make a new application for this relief upon proper papers showing that his default was not willful, but resulted from mistake, inadvertence or excusable neglect (Civ. Prac. Act, § 108).

The moving papers do not set forth facts excusing the delay in placing the case on the calendar. While plaintiff says in his affidavit in support of the motion that he did not intend to abandon the action, and implies fault on the part of his former attorney, no facts are adduced to explain the failure to file a note of issue, to oppose the motion to dismiss for failure to prosecute, or to move to open the default until 10 months after judgment was entered dismissing the complaint.

Concur — Pette, Hart and Brown, JJ.

Order reversed, etc.  