
    Peter Haberkorn, Respondent, v. P. Lorillard Company, Appellant.
   Order entered on April 20, 1961 granting conditionally defendant’s motion to dismiss plaintiff’s personal injury negligence action for failure to prosecute diligently, unanimously modified, on the law, the facts, and in the exercise of discretion, with $20 costs and disbursements to defendant-appellant, to the extent of deleting the condition and the motion is granted unconditionally, with $10 costs. This 1955 lawsuit has never been noticed for trial. Plaintiff has unjustifiably failed to return the deposition taken of his testimony as a party, after repeated and insufficiently explained defaults in connection with the taking of such deposition. It is established that plaintiff’s multiple delays in the pressing of his claim have been excessive. This is so, even if plaintiff’s stricken affidavit is considered. Under rule 156 of the Rules of Civil Practice and section 181 of the Civil Practice Act the action should have been dismissed unconditionally. Plaintiff was entitled to no further grace. Motion to dismiss appeal and/or nullify and vacate the record on appeal as filed herein denied, with $10 costs. Concur — Breitel, J. P., Rabin, Valente, Eager and Steuer, JJ.  