Opinion
October 10, 1961
Appeal from decision, entered on November 7, 1960, unanimously dismissed, with costs to the respondents. Primarily, the appeal is evidently taken from a "decision" of the Trial Judge, which at the time the notice of appeal was served, had not been reduced to an order or judgment. No appeal lies from a decision. To become appealable the determination of a court must be in the form of an order or judgment. ( Le Glaire v. New York Life Ins. Co., 5 A.D.2d 171; see Matter of Scott, 10 A.D.2d 556, revd. on other grounds 8 N.Y.2d 419; Matter of Sostre v. Mailler, 9 A.D.2d 828, motion for leave to appeal denied 7 N.Y.2d 709; Edwards v. Huntting, 11 A.D.2d 768.) Secondly, the decision of the trial court was without prejudice to the service of a new complaint; and thereafter plaintiff applied for and obtained leave to serve new pleadings. The action is now at issue on an amended complaint. With the service of the new complaint, the appeal from the dismissal of the original complaint must be deemed abandoned. (See Kriger v. Industrial Rehabilitation Corp., 8 A.D.2d 29, affd. 7 N.Y.2d 958.)
Concur — Botein, P.J., Breitel, Rabin, Valente and Eager, JJ.