
    Mae N. Kyles and John O. Kyles, Appellants, v. The City of New York, Respondent, and Juliette Farish, Defendant.
   Appeal from an order denying plaintiff’s motion for an order vacating and setting aside the dismissal of the action on February 26, 1940, and to restore the case to the calendar for trial, and from the judgment entered on the dismissal. Order reversed on the law and the facts, without costs, motion granted, judgment of dismissal entered April 24, 1940, vacated, and the case restored to the trial calendar Part I, Queens County, for October 20, 1941, upon condition that within five days from the entry of the order hereon the plaintiffs pay to defendant The City- of New York twenty-five dollars costs; otherwise, order and judgment unanimously affirmed, with ten dollars costs and disbursements. The failure of counsel to attend in court on the day the case was reached was inadvertent, not willful, and the denial of the motion to open the default and vacate the dismissal was not, under the circumstances, a reasonable exercise of discretion; it should have been granted on terms. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.  