dissents in a memorandum as follows: I would reverse the order appealed from and grant defendants-appellants’ motion to dismiss the action. The action was started by service of a summons without a complaint more than five years after the cause of action, if any, accrued. At least a notice of appearance and demand for "all papers” was served promptly. Plaintiff did absolutely nothing for 32 months after receiving the notice of appearance and then finally served a complaint, which defendants-appellants’ attorney said he was rejecting. Quite apart from the technical details as to whether defendants demanded a copy of the complaint or rejected the complaint when finally served, it is clear that no attorney serious about persuing his action would fail to serve a complaint for 32 months and do nothing about the action for that long a period. The circumstances give rise to an almost inescapable inference that the action was abandoned. As to the technical aspects, I would hold that the demand for service of all papers is the equivalent of a demand for the complaint under CPLR 3012 (subd [b]), justifying dismissal of the action. (Cf. Ferris v Soley, 23 How Prac 422.) And *623I think that it is much too formalistic to say that failure to return physically the copy of the complaint, finally served on defendants, is the legal equivalent of acceptance of the complaint and a waiver of the default, in the face of an express simultaneous statement by the defendants’ attorney that he was rejecting the complaint. (Cf. Miller v Schloss, 218 NY 400, 406): "A contract cannot be implied in fact * * * against the declaration of the party to be charged”.