Appeal unanimously dismissed, without costs. Memorandum: Since the original defendant is now deceased and no one has been substituted as the representative of his estate, we cannot entertain the present appeal by the attorney for the deceased defendant, from an order permitting the plaintiff to discontinue the action without prejudice to the commencement of a new action against the representative of the estate of the deceased defendant. The order authorizing the discontinuance of the action would have been improper, in the absence of a substitution of the legal representative of the estate of the deceased defendant, except for the fact that plaintiff had the absolute right to discontinue the action as no answer had been served, under rule 301 (subd. 1, par. [a]) of the Rules of Civil Practice, without obtaining any order. Since the order only authorized what the plaintiff ■ could have accomplished by merely filing a notice under rule 301 (subd. 1, par. [a]), the order did no harm. We are informed that a new action has been instituted by the plaintiff against the executor of the defendant’s estate. The first action has now been disposed of, and the new action may continue to judgment. (Appeal from certain parts of an order of Monroe Special Term disallowing defendant’s special appearance and granting the voluntary discontinuance of this action without prejudice to continue the action anew against estate.) Present—Williams, P. J., Bastow, Goldman, Halpern and Henry, JJ.