(dissenting). The order appealed from purports to vacate the dismissal of the action pursuant to rule 302 of the Rules of Civil Practice and to restore the cause to the General Jury Calendar for the date therein specified. This court in Klein v. Vernon Lbr. Corp. (269 App. Div. 71) made it unmistakably clear that a motion to restore to the trial calendar an action which had been dismissed under rule 302 of the Rules of Civil Practice will not lie until the moving party has relieved himself from default by appropriate application and order. (See, also, Niewiadowski v. Kulp-Waco, 279 App. Div. 974.) Respondent at the time of making his motion to restore the case to the calendar was in default and, consequently, the motion to restore was premature.
The order appealed from should be reversed, and the motion denied, without prejudice to the respondent to move to open its default to vacate the dismissal and thereupon to restore the case to the trial calendar, after compliance with the provisions of the New York County Special Rule Respecting Calendar Practice.
*779Breitel, J. P., M. M. Frank and Valente, JJ., concur in Memorandum by the Court; Rabin, J., concurs with McNally, J., who dissents in opinion.
Order modified in the exercise of discretion to the extent of striking the provisions which restore the case to the General Jury Calendar, without prejudice to an application for such restoration when there has been compliance with the Special Rules, and, as so modified, affirmed, without costs.