
    (May 13, 1974)
    Patrick Beary, Appellant, et al., Plaintiff, v. Chester Schwimmer, Respondent.
   In an action inter alia for libel, plaintiff Beary appeals, as limited by Ms notice of appeal and his briefs, from so much of an order of the Supreme Court, Queens County, entered December 13, 1972, as granted the branch of a motion by defendant which was to dismiss the first cause of action in the complaint on the ground it did not state a cause of action (CPLR 3211, subd. [a], par. 7). Appeal dismissed, with $20 costs and disbursements. The order appealed from granted appellant leave to replead. Appellant, subsequent to the filing of his notice of appeal, availed himself of the leave to replead and is therefore now precluded from seeking a review of the order (Kriger v. Industrial Rehabilitation Corp., 8 A D 2d 29, affd. 7 N Y 2d 958; Wilde v. Caron Corp., 20 A D 2d 931; Cioffi v. City of New York, 14 A D 2d 741; see, also, 10 Carmody-Wait 2d, New York Practice, § 70.82). Shapiro, Acting P. J., Cohalan, Christ, Benjamin and Munder, JJ., concur.  