Opinion
June 18, 1962
In an action to recover damages arising out of an alleged conspiracy to defraud and to obstruct justice, plaintiff appeals: (1) from an order of the Supreme Court, Westchester County, dated February 17, 1962, which granted defendants' motions to dismiss the amended complaint pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, with leave to replead; and (2) from an order of said court, dated March 8, 1962, which denied plaintiff's motion to strike out the answer of defendants Hays and Kellegrew and to punish them for contempt for failure to appear and be examined before trial. Appeal dismissed, without costs. The first order permitted the service of an amended complaint, which has been served. Such amended complaint superseded the prior amended complaint. Therefore a decision here would relate to a nonexisting pleading and would be academic ( Schneidman v. Steckler, 5 A.D.2d 990). When the amended complaint was struck out there no longer were any issues which could be the subject of examination. Hence, plaintiff cannot be aggrieved by the second order which denied his motion to punish the two individual defendants for their failure to appear for examination. Beldock, P.J., Brennan, Hill, Rabin and Hopkins, JJ., concur.