Appeal by plaintiff from an order of Special Term which denied his motion to vacate a judgment and for a new trial of the issues raised by the counterclaim of defendant on the ground of newly discovered evidence and in the interest of justice. It appears that defendant had died before the service of the notice of motion which resulted in the order appealed from. Upon her death, this action abated and could be revived and continued only upon the substitution of her executor as defendant. Until such is made, no proceedings in the action can be taken by either party and the order of Special Term is a nullity. It follows that the notice of appeal is also void. ( Solomon v. Kittay, 11 A.D.2d 725; Ruderman v. Feffer, 10 A.D.2d 704; Wanamaker v. Springstead, 274 App. Div. 1008, motion for reargument denied 274 App. Div. 1066; O'Brien v. Flynn, 228 App. Div. 704; Civ. Prac. Act, § 84.) This, of course, precludes our examination of the merits of plaintiff's appeal at this time. It does not preclude an application to the Special Term to substitute the executor as defendant; nor a new motion at Special Term for the relief which plaintiff seeks. Appeal dismissed, without prejudice and, without costs. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.