
    (October 18, 1962)
    Anna Maronet, Respondent, v. 1010 Rogers, Inc., Appellant.
   Order of Appellate Term entered February 1, 1962, dismissing defendant-appellant’s appeal from a judgment of the City Court, Bronx County, in favor of plaintiff, unanimously reversed on the law, the facts and in the exercise of discretion and the case remitted to the Appellate Term to hear and determine the same on the merits on condition that defendant-appellant, within 10 days after service of a copy of the order to be entered hereon, with notice of entry, pay the taxable costs of $199 provided for in the judgment and $20 costs and disbursements on this appeal, and that defendant-appellant prosecutes its appeal in the Appellate Term with all due diligence for the next available term of that court, otherwise the order is affirmed, with $20 costs and disbursements to respondent. The appeal herein was taken pursuant to leave granted by the Appellate Term. Initially, we hold that we have jurisdiction to entertain the appeal under section 623 of the Civil Practice Act. We conclude that it was not appropriate to dismiss the appeal unconditionally for lack of diligence in prosecution. However, it does appear that there was unnecessary delay in the processing of the appeal for which suitable terms should be imposed on appellant in the form of the conditions hereinabove provided for. Settle order on notice. Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.  