15 N.Y.2d 799 (1965)
The People of the State of New York, Appellant,
The People of the State of New York, Appellant,
v.
Walter Wagner, Respondent.
Court of Appeals of the State of New York.
Argued February 2, 1965. Decided February 11, 1965.Robert H. Ecker, District Attorney, for appellant.
David B. Alford for respondent.
Louis J. Lefkowitz, Attorney-General (Walter J. Hogan and Paxton Blair of counsel), amicus curiæ.
Concur: Chief Judge DESMOND and Judges DYE, VAN VOORHIS and BERGAN. Judges FULD, BURKE and SCILEPPI dissent and vote to reverse and to reinstate the judgment of conviction.
Order affirmed. This dismissal for failure to prosecute was, on the particular facts, valid as an exercise of discretion (see People v. Alfonso, 6 N Y 2d 225). We pass on no other question. No opinion.