
    Luc Rochefort, Respondent, v. James A. Stillman, Appellant, and Emily M. Baker, Defendant.
    (Appeal No. 2.)
   Order denying on condition appellant’s motion to dismiss complaint for lack of prosecution reversed upon the law and the facts, with ten dollars costs and disbursements, motion granted and complaint dismissed, with costs. Plaintiff commenced this action to recover damages for alienation of his wife’s affections in November, 1932, issue being joined in December, 1932. No note of issue was filed or served until May, 1935, and in the meantime younger issues were reached in regular calendar order and tried. Plaintiff’s only excuse for his neglect to proceed to trial is lack of funds. Since plaintiff might have applied for leave to sue as a poor person, the excuse given is unreasonable and the complaint must be dismissed. (Rules Civ. Prac. rule 156; Civ. Prac. Act, § 181; Armstrong v. Star Co., 154 App. Div. 320.) Scudder, Tompkins and Johnston, JJ., concur; Lazansky, P. J., and Davis, J., dissent and vote to affirm.  