
    Charles Sergi, Appellant, v. Manhattan Sand Co., Inc., Respondent.
   Order dismissing complaint for lack of prosecution and judgment entered thereon reversed upon the law and the facts, without costs, and motion denied. Under the circumstances of this case we are of opinion that plaintiff should have bis day in court. Lazansky, P. J., Young, Scudder and Davis, JJ., concur; Kapper, J., dissents and votes to affirm.  