Order affirmed, with $10 costs and disbursements. Memorandum: While it must be conceded that the plaintiff was dilatory in the prosecution of his action after the ease was before this court the second time, yet we think there was no abuse of discretion on the part of the Special Term in denying the defendant’s motion to dismiss. The defendant failed to serve a copy of the order of affirmance upon plaintiff’s attorney. The Special Term had the right to consider that fact, in the exercise of its discretion, as well as the fact that no motion to dismiss was made until after the plaintiff had noticed the case for trial and moved it on calendar call. Until the plaintiff took steps to try this ease, the defendant was, apparently, content to let the matter rest.• (See Mladinich, v. Livingston, 112 App. Div. 181, and United States Fidelity & Guar. Co. v. Whitman, 138 App. Div. 275.) All concur. (Appeal from an order denying defendant’s motion to dismiss plaintiff’s complaint for failure to prosecute.) Present — Taylor, P. J., McCurn, Kimball, Piper and Wheeler, JJ.