
    Joseph Freilich, Respondent, v. Leon V. Rosenberg, Appellant, et al., Defendants.
   In this action for breach of an alleged oral contract of employment, issue was joined in May, 1953. The defendant moved to dismiss for lack of prosecution in April, 1957. The delay in prosecuting the action is unwarranted. The burden of proving the exeusability rests upon the plaintiff. The partial incapacity of plaintiff’s former attorney in 1954 and his illness in 1955 and the plaintiff’s marital difficulties in 1956 do not explain the inordinate delay in prosecution. Further, plaintiff fails to present facts indicating a meritorious cause of action. (See Moshman V. City of New York, 3 A D 2d 825; Hyde é Sons v. Boiler Derby Skate Co., 1 A D 2d 942.) The order is unanimously reversed, with $20 costs and disbursements to appellant, and the motion to dismiss the complaint for lack of prosecution is granted unconditionally, with costs. Concur—Peck, P. J., Rabin, Frank, Valente and McNally, JJ.  