
    Ruth Sowells et al., Appellants, v. Thomas J. O’Neill et al., Respondents.
   Motion by appellants for reargument of appeal from so much of an order of the Supreme Court, Westchester County, entered May 3, 1965, as, in granting their motion to restore the action to the Trial Calendar, imposed the condition that the issue of liability be tried separately, which order, insofar as appealed from,-was affirmed by order of this court, dated October 25, 1965. Motion refererred -to the court that rendered the decision. Beldoek, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur. Motion granted; and upon reargument, order and decision both dated Octoher 25, 1965 vacated insofar as they pertain to defendant Thomas J. O’Neill; appeal insofar as it pertains to said defendant dismissed, without costs; and original decision, insofar as, it pertains to the other defendants, adhered to. In our opinion, in view of the additional facts disclosed for the first time upon reargument, the order appealed from is a nullity insofar as it pertains to defendant Thomas O’Neill. Defendant O’Neill died on February 10, 1964, prior to the making of the order from which the appeal was taken. Although an -administrator for his estate was appointed prior to the making of that order, he has not been substituted in the action for the deceased defendant. This court had no jurisdiction to hear and determine the appeal as to that defendant (Chimenti v. Hertz Corp., 25 A D 2d 562; Speier v. St. Francis Church, 3 A D 2d 732).

Beldoek, P. J., Ughetta, Christ, Hill -and Hopkins, JJ., concur.  