SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
April 22, 1968
RAYMOND WARREN, RESPONDENT,
EARL COLE, APPELLANT, ET AL., DEFENDANTS
Appeal from an order of the Supreme Court, Dutchess County, dated June 21, 1966, which denied a motion purportedly made by defendant Earl Cole on April 29, 1966 and returnable on May 16, 1966, before answer, to dismiss the complaint as to him, upon the ground that plaintiff's cause of action against him was barred by the Statute of Limitations. Appeal dismissed, without costs.
Christ, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.
It appears that prior to the making of the motion presently under review, the defendant Cole died. There has been no substitution for him by a representative of his estate. Hence the Special Term lacked jurisdiction to pass on the motion, and the notice of appeal, which purports to be by him, is void and cannot bring the appeal before this court (Chimenti v. Hertz Corp., 25 A.D.2d 562). We have, however, examined the merits and have concluded that, if there were jurisdiction, the motion should be denied.
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