Opinion
November 21, 1949.
Appeal by defendant from so much of an order as denies its motion under rule 106 of the Rules of Civil Practice to dismiss the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action. Appeal dismissed, with $10 costs and disbursements to respondent, for the reason that the complaint to which the motion was directed has been superseded by an amended complaint, to which an answer has been interposed. The amended complaint is not before the court. ( Kolber v. Kolber, 267 App. Div. 837; Millard v. Delaware, Lackawanna Western R.R. Co., 204 App. Div. 80; Hammer v. Dahl, 243 App. Div. 571; Mannaberg v. Culbertson, 262 App. Div. 101 3.) Defendant's remedy is to move, if so advised, with respect to the amended complaint. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.