
    Vincenzo Scivetti and Theresa Lacalamita, Respondents, v. Robert L. Tompkins, Appellant.
   In an action to recover damages for personal injuries sustained, as.alleged, through defendant’s negligence, order denying defendant’s motion to dismiss the complaint for lack of prosecution modified by inserting therein a provision for the payment of ten dollars costs by the plaintiffs to the defendant or to his attorney. As so modified, the order is affirmed, with ten dollars costs and disbursements to the appellant. There was a period of approximately seven months between joinder of issue in this action and April 23, 1936, the date on which defendant moved to dismiss for failure to prosecute. For this violation of rule 156 of the Rules of Civil Practice, which limits the delay to six months, plaintiffs have offered neither excuse nor explanation. Lazansky, P. J., Hagarty and Johnston, JJ., concur; Carswell and Davis, JJ., dissent and vote to affirm without modification.  