
    Emma A. May, Respondent, v. Robert Louis Hoguet, Appellant.
   Order granting motion to dismiss for failure to serve a complaint modified by striking therefrom the words “ unless the ease is noticed for trial for the December, 1938, Term,” and, as so modified, affirmed, without costs. In view of the existence of an order denying a motion for leave to serve a complaint and the failure of the respondent to show that the action would be diligently prosecuted, we are of opinion that the complaint should have been dismissed unconditionally. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.  