Upon appeal by plaintiff from an order granting a motion to dismiss this action for failure to prosecute, we remitted the matter to Special Term for a hearing and a decision whether there was a reasonable excuse for plaintiff’s long continued inactivity in this litigation, *294such that his cross application to open his default, vacate the automatic dismissal of the action under subdivision 2 of rule 302 of the Rules of Civil Practice (now CPLR 3404) and restore the case to the calendar should be granted. After the hearing Special Term concluded that it was inconceivable that plaintiff would have knowingly permitted his meritorious cause of action to lapse by default and that the evidence established that plaintiff was led to believe he had a firm understanding with defense counsel that the proceedings would be-held in abeyance until the death of the life tenant. In the exercise of its discretion, the court therefore decided that the dismissal should be vacated and the case restored to the calendar. Upon all the circumstances, such decision was not an improvident exercise of discretion and, upon review, should not be disturbed by an appellate court.
Goldman, P. J., Bastow and Henry, JJ., concur in Per Curiam opinion; Del Vecchio, J., dissents and votes to grant plaintiff’s cross application in memorandum.
Order of Special Term entered November 7,1968 vacated as a nullity; order entered January 31, 1967 and judgment entered February 6, 1967 reversed on the law and facts, without costs; motion to dismiss complaint made in August, 1966 dismissed as academic; and plaintiff’s cross application to open his default, to vacate the prior dismissal and to restore the case to the calendar, denied, without costs.