
    In the Matter of Nicholas Rubino, Respondent, against Empire Heating Corporation et al., Appellants.
   In a proceeding by a stockholder, pursuant to article 78 of the Civil Practice Act, to inspect corporate books and records, the appeal is from an order denying a motion to resettle a previous order which granted an inspection of the books and records of the appellant corporation. Appeal dismissed, with $10 costs and disbursements. The order is not appealable. (Bergin v. Anderson, 216 App. Div. 844; Ambassador Realty Co. v. Nicolay, 1 A D 2d 972; 8 Carmody-Wait on New York Practice, p. 521.) We have examined the merits, however, and would affirm the order appealed from if the appeal were not being dismissed. Nolan, P. J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur.  