
    Constant Uzenski, Respondent, v. James E. Fitzsimmons, Appellant.
   In an action to recover damages for assault, the defendant appeals: (1) from an order of the Supreme Court, Queens County, entered January 25, 1960, granting plaintiff’s motion for summary judgment striking out defendant’s answer; and (2) from an order of the same court entered on the same day, denying his motion for leave to reargue plaintiff’s motion for summary judgment. Order granting summary judgment reversed, with $10 costs and disbursements, and motion for summary judgment denied. While the record of defendant’s conviction of the crime of assault in the third degree is admissible, it does not establish sufficiently the essential elements of the cause of action alleged, so as to warrant summary judgment. (Schindler v. Royal Ins. Co., 258 N. Y. 310; Everdyke v. Esley, 258 App. Div. 843; cf. Sims v. Sims, 75 N. Y. 466, 471, 472; Voltz v. Blackmar, 64 N. Y. 440, 444-445.) Appeal from order denying reargument dismissed. Such order is not appealable. Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur. [21 Misc 2d 148.]  