Opinion
April 27, 1964
In an action to recover payments alleged to be due under an oral contract, and further alleged to be evidenced by written memoranda subscribed by defendant, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered July 24, 1963, upon an order dated July 11, 1963, which granted defendant's motion to dismiss the second amended complaint on the merits pursuant to subdivision 7 of rule 107 of the former Rules of Civil Practice. By the notice of appeal, plaintiff also seeks "to bring up for review" said order of July 11, 1963 and a prior order, dated May 3, 1963, which granted defendant's motion to dismiss the first amended complaint, with leave to replead. Judgment, and order of July 11, 1963 affirmed, without costs. No opinion. Appeal from order of May 3, 1963, dismissed, with costs. Since plaintiff did not appeal directly from that order within the time prescribed, and since she availed herself of the leave to replead, that order is not reviewable on this appeal from the final judgment ( Kriger v. Industrial Rehabilitation Corp., 8 A.D.2d 29, affd. 7 N.Y.2d 958; Cioffi v. City of New York, 14 A.D.2d 741). Ughetta, Acting P.J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.