
    (January 22, 1958)
    Petrossi Asphalt Corporation, Respondent, v. Marcello Scagliola, Appellant.
   Order affirmed, without costs of this appeal to either party. Memorandum: The provision of the ex parte order of April 11, 1947 purporting to discontinue the action was plainly improper. We do not reach the question of whether the action was ever instituted by service of the summons and complaint, or whether the action should be deemed abandoned. All concur, Goldman, J., not participating. (Appeal from an order of Monroe County Court granting a motion by plaintiff to modify an ex parte order in 1947, which ex parte order discontinued the action.)

Present — Kimball, J. P., Williams, Bastow, Goldman and Halpern, JJ.  