
    Bankers Commercial Corp., Appellant, v. American Home Assurance Company, Respondent.
    Supreme Court, Appellate Term, First Department,
    December 3, 1959.
    
      Irving G. Schleimer for appellant.
    
      Zipser \& Levitt (Sidney N. Zipser and Howard E. Levitt of counsel), for respondent.
   Per Curiam.

The Civil Practice Act does not provide for the situation where after the denial of a motion for summary judgment additional facts come to plaintiff’s attention or a contention advanced can be defeated by conclusive proof. Undoubtedly the proper practice is to apply to the Judge who made the original decision for leave to reargue or renew. Were this practice available we would so direct. But the Judge so deciding is no longer on the Bench. Under the circumstances as it now appears that there is no defense to the action and a trial would be useless we direct judgment but without approval of the practice adopted.

The order should be reversed, without costs, and motion for summary judgment granted.

Concur — Steuer, J. P., Aurelio and Tilzer, JJ.

Order reversed, etc.  