Opinion
March 8, 1946.
Present — Martin, P.J., Townley, Glennon, Callahan and Peck, JJ.;
The notice of trial and the note of issue placing the case on the calendar were served prior to the substitution of the administratrix of the deceased party ( O'Brien v. Flynn, 228 App. Div. 704). Order reversed, with $20 costs and disbursements to the appellant and the motion to vacate the judgment granted.
Glennon and Peck, JJ., dissent and vote to affirm. Settle order on notice. [See post, p. 840.]