
    Frank Magaletti, Respondent, v. Frank Trapani, Jr., et al., as Executors and Trustees under the Will of Frank Trapani, Deceased, Appellants.
   -In an action to recover a real estate broker’s commission, defendants appeal from an order of the City Court of White Plains, dated February 16, 1960, granting their motion to dismiss the complaint for failure to prosecute, unless a note of issue is filed by said date (Civ. Prac. Act, § 181; Rules Civ. Prae., rule 156). Order modified by striking from the ordering paragraph the proviso as to the filing of the note of issue. As so modified, order affirmed, with $10 costs and disbursements. Upon the return of the motion to dismiss, plaintiff failed to submit any papers in opposition, notwithstanding the requirements for a demonstration that the delay was not unreasonable and that the action had merits. Hence, it was an improvident exercise of discretion for the court to withhold the unconditional dismissal of the complaint. (See Tripp, Guide to Motion Practice, 1958 Sup., pp. 13-14.) Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.  