Opinion
March 26, 1945.
Present — Close, P.J., Hagarty, Johnston, Lewis and Aldrich, JJ. [See post, p. 711.]
On renewal of motion of defendant Norwegian Shipping Trade Mission to dismiss appeal from order made on its motion on the 26th day of May, 1944, granting motion to dismiss complaint and directing entry of judgment, motion granted, without costs, and appeal dismissed, without costs. On renewal of motion of defendant Norwegian Shipping Trade Mission to dismiss appeal from judgment dismissing the complaint entered the 16th day of June, 1944, motion to dismiss granted, without costs, and appeal dismissed, without costs. On renewal of motion of defendant Tollefsen Bros., Inc., to dismiss the appeal from order made on its motion on the 29th day of May, 1944, and entered on the 31st day of May, 1944, granting motion to dismiss complaint and directing entry of judgment, motion granted, without costs, and appeal dismissed, without costs. On renewal of motion of the defendant Tollefsen Bros., Inc., to dismiss appeal from the judgment dismissing the complaint entered on the 16th day of June, 1944, motion to dismiss granted, without costs, and appeal dismissed, without costs. The contention of defendant Tollefsen Bros., Inc., that the appeal from the order made May 29, 1944, should be dismissed on the ground that such order was superseded by an order made on July 31, 1944, granting reargument and, on reargument, adhering to the original determination, must be sustained. The granting of the motion for reargument rendered the original order a nullity. ( Schrank v. New York Hotel Statler Co., Inc., 254 App. Div. 710; Weitzer v. Weitzer, 255 App. Div. 795; Parness v. Halpern, 257 App. Div. 678, 679.) The notices of appeal from the order made May 26, 1944, on motion of defendant Norwegian Shipping Trade Mission, and from the judgment entered June 16, 1944, were not served in time, and the contentions of plaintiff that the copy of the judgment served upon him was not a true one, that the notice of entry thereon was defective, and that there was a subsequent retaxation of costs which extended the time within which to appeal, are without substance. It appears, however, that this order, as well as that entered on the motion of the codefendant on May 31, 1944, and the judgment based thereon, were rendered nugatory by the order made July 31, 1944, granting reargument.