Marth v. Baldwin 242 A.D. 799

Order granting defendant’s motion to dismiss for failure to prosecute unless the action be noticed for trial for the October term, and denying the motion in the event that the action be so noticed, modified by inserting therein a provision that the denial is further conditioned upon the plaintiff’s stipulating, in case they are not called or produced at the trial, that defendant’s two witnesses would testify as claimed by the defendant as stated in the affidavits in respect of the condition of his ear and the value of the same one month before the accident and that defendant’s police witness would testify as to the respective positions of the two cars immediately after the accident as defendant claims he would testify. As thus modified the order is affirmed, without costs. Lazansky, P. J., Kapper, Hagarty, CarsweE and Davis, JJ., concur.