ELLMAN v. MENDELOWITZ, 34 N.Y.2d 735 (1974)

357 N.Y.S.2d 496, 313 N.E.2d 789

ROGER ELLMAN, an Infant, by His Mother and Natural Guardian, ELIZABETH ELLMAN, et al., Appellants, v. HERBERT MENDELOWITZ et al., Respondents.

Court of Appeals of the State of New York.Submitted April 1, 1974
Decided May 8, 1974

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ARNOLD G. FRAIMAN, J.

Joseph Mandell for motion.

Abraham Schlissel opposed.

Motion dismissed as academic.

On the court’s own motion, appeal dismissed, without costs. The appeal from the Appellate Division’s dismissal of the appeal for failure to prosecute is dismissed on the ground that such a determination turns on the exercise of discretion not here reviewable (see Lima v. Chrysler Corp., 26 N.Y.2d 981). The appeal from the Appellate Division’s order of affirmance of the order denying plaintiffs’ motion for a new trial is dismissed upon the ground that said order is nonfinal.

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