Lieb

Dismissal of action for lack of diligence in the prosecution thereof. Plaintiff sued the defendants upon an open book account and upon an account stated. The complaint was filed and summons issued thereon on October 29, 1930. No further action was taken by plaintiff until January 30, 1933, a period of some two years and three months thereafter, when one of the defendants was served with complaint and summons. Thereupon both defendants made a motion to dismiss. The motion was heard upon affidavits. The affidavits of defendants show that they were available and accessible at all times subsequent to the filing of the complaint and could have been served. This fact was not denied by plaintiff. The affidavit of plaintiff in opposition to the motion sets forth that within two months after the filing of the complaint he met defendant Lager and at said time the subject-matter of plaintiff’s demand was discussed and plaintiff advised this defendant that he had sued on the account; that Lager then stated he would see his partner and suggested that plaintiff take no further steps or incur further expense in the prosecution of said action pending a possible adjustment thereof. Plaintiff’s…