
    Lena Ferrandino et al., Doing Business as Marbetti, Appellants, v. Lucia L. Cappelli, Respondent.
   Order entered on October 2, 1959) dismissing the action for failure to serve a complaint, reversed, on the law, on the facts and in the exercise of discretion, with costs to plaintiffs-appellants, and the motion denied, with $10 costs, with leave to serve a complaint within 20 days after the entry of the order hereon. This action against the record owner of the property was not prosecuted only because it was represented that the true owner was the decedent Carmello Lozito, father of defendant-respondent Lucia Lozito Cappelli. The pendency of the companion action against the estate of said decedent in which the issue of title may be raised by reason of the record title, there being no demonstration of any prejudice thereby adequately excuses the failure to timely serve the complaint. There will be irreparable prejudice to plaintiff since it appears that the Statute of Limitations has run on the claim since the service of the summons. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.  