The defendant appealed from an order of this court reversing a judgment and granting a new trial. (See 153 App. Div. 33.) That appeal has not been disposed of by the Court of Appeals and is still pending. The fact that this court subsequently resettled the order appealed from, while it would be the basis of an application to the Court of Appeals to dismiss the appeal, does not supersede the appeal, and we do not think the court was.justified in restoring the case to the calendar until the appeal was dismissed or otherwise disposed of by the Court of Appeals. The motion will, therefore, be granted." Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Motion granted. Order to be settled on notice.