Majority
p. 898Hyman Bernstein, Respondent, v. Samuel Baumann, Doing Business under the Firm Name and Style of J. Baumann & Brother, Appellant.
Order reversed, with ten dollars costs and disbursements, and motion to dismiss the action for failure to prosecute granted, with costs, on the ground that the excuse offered by plaintiff for a delay of nearly five years in bringing the case to trial is insufficient. Burr, Thomas and Carr, JJ., concurred; Jenks and Rich, JJ., dissented.