Tournier v. Linden General, Inc.

In a negligence action to recover damages for personal injury, medical expenses and loss of services, plaintiffs appeal from an order of the Supreme Court, Kings County, entered J une 16, 1965, which opened defendants’ default in appearing for trial and restored the action to the Trial Calendar on stated conditions. Appeal dismissed insofar as it relates to defendant Diamond, without costs. Order affirmed insofar as it relates to the corporate defendant, without costs (CPLR 321, subd. [e]). It appears that after defendants moved to vacate their default, but prior to the decision or order of the court thereon, defendant Diamond died. There has been no substitution for him by a representative of his estate. The notice of appeal, insofar as it purports to be directed to him, is void and cannot bring the appeal as to him before this court (cf. Chimenti v. Hertz Corp., 25 A D 2d 562; Speier v. St. *577Francis Church, 3 A D 2d 732). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.