McCarthy v. Edington 21 A.D.2d 796

In a negligence action, the defendant Suffolk County appeals from an order of the Supreme Court, Suffolk County, dated December 17, 1963, which denied conditionally its cross motion to dismiss the action as against it for lack of prosecution. The record on appeal contains no such order. However, our examination of the original papers filed with this court reveals: (a) that a memorandum of the court’s decision, dated December 17, 1963, denying conditionally the defendant Suffolk County’s motion to dismiss, directed submission of an order to that effect, but that no such order of that date or otherwise appears to have been submitted or signed; (b) that instead, an order dated January 8, 1964 (which is the only order printed in the record) appears to have been entered in conformity with such decision; (c) that thereafter, an order dated May. 12, 1964 was entered, granting plaintiffs’ motion for reargument and denying the county’s original cross motion unconditionally, and (d) that a notice of appeal from such latter order was duly filed, but such notice was not printed in the record. The appeal will be deemed to have been taken from the order of January 8, 1964. On this court’s own motion, pursuant to statute (CPLR 5517), the subsequent order, made May 12, 1964 on reargument, has been reviewed. Order of May 12, 1964 affirmed, without costs. No opinion. Appeal from order of January 8, 1964 dismissed as academic; that order was superseded by the later order of May 12, 1964. Kleinfeld, Acting P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.