
    Richard Eichhorst, Respondent, v. Mitchell Gardens Corp., Appellant.
    Supreme Court, Appellate Term, Second Department,
    June 16, 1959.
    
      Tropp & Steinbock (I. Sidney Worthman of counsel), for appellant.
    
      John P. Gering and George Greenstein for respondent.
   Per Curiam.

The question as to whether the note of issue was served before defendant moved to dismiss the action for lack of prosecution cannot be resolved upon the conflicting affidavits submitted herein. Prior service of the note of issue, if established, may be considered in determining the motion. {Richardson v. Erie R. R. Co., 280 App. Div. 958; Nelson v. Ryan, 214 App. Div. 821; Mladinich v. Livingston, 112 App. Div. 181.)

The order should be unanimously reversed on the facts, without costs, and motion to dismiss for lack of prosecution remitted to Special Term for disposition after the .taking of oral proof as to the dates on which the note of issue and motion papers were served.

Concur — Pette, Hart and Brown, JJ.

Order reversed, etc.  