L. BARRON HILL, J.
This is a motion to dismiss the complaint for failure to diligently prosecute the action.
Plaintiff has carried his complaint to the Court of Appeals where it has been sustained ( Rose v. Rose, 309 N.Y. 713). The action, by stipulation, has not been consolidated for trial with an accounting action; no motion has been made to dismiss the action for the accounting. Plaintiff is 70 years of age and alleges that for his health he must reside in Florida. He has further represented to the court, on this motion, that he is making plans to come to this State shortly to complete examinations before trial in the accounting action and to proceed to trial in both actions.
Under all the circumstances, the motion is denied without prejudice to a renewal if plaintiff fails to prosecute the action as indicated in his answering affidavit.
Settle order.