Opinion
November 16, 1938.
Present — Sears, P.J., Crosby, Lewis, Cunningham and Dowling, JJ. [See 164 Misc. 883.]
Order so far as appealed from affirmed, with ten dollars costs and disbursements, on the authority of Schmidt v. Merchants Despatch Transportation Co. ( 270 N.Y. 287); Felli v. U.S. Gypsum Co. (Id. 287); Michalek v. U.S. Gypsum Co. (76 F. [2d] 115); Miller v. U.S. Gypsum Co. (96 id. 69). The appeal from the order first granted does not oust the court of jurisdiction to grant a reargument of the motion on which the order appealed from had been granted. ( Belmont v. Erie R. Co., 52 Barb. 637.) All concur. (The portion of the order appealed from grants a reargument of a motion to dismiss plaintiff's complaint in a silicosis action.)