In a malpractice action, in which the defendant St. Joseph’s Hospital instituted a third-party action against the County of Nassau and three physicians who allegedly administered to the female plaintiff the treatment in question, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated February 19, 1963, which granted the motion of said three physicians as third-party defendants to vacate the primary plaintiffs’ notice to examine said third-party defendants before trial. Appeal insofar as it affects the third-party defendant Austin B. Johnson, is dismissed, without costs.
It appears that the said physician had died prior to entry of the order appealed from and that no representative has been substituted. As to him, therefore, both the order and the notice of appeal therefrom are nullities (see Solomon v. Kittay, 11 A D 2d 725). As to the remaining individual third-party defendants, Christman and Turbin, the order is reversed, with one bill of $10 costs and disbursements to plaintiffs; and the third-party defendants’ motion to vacate the plaintiffs’ notice of examination is denied.
The pretrial examination of the said two third-party defendants shall proceed on 10 days' written notice or at such other time and place as the parties may mutually fix by written stipulation. The third-party defendants became parties to the action with the right to examine the primary plaintiffs before trial, irrespective of whether there existed any issue, created by the pleadings, between said plaintiffs and third-party defendants (Argento v. Beech & Bowne Bldg. Corp., 37 Misc 2d 513; former Civ. Prac. Act, § 193-a, subd. 2, now CPLR 1008).
The primary plaintiffs and the third-party defendants are thus adverse parties; hence mutual examinations before trial should be permitted (Hollant v. North Shore Hosp., N. Y. L. J., April 22, 1963, p. 17, col. 8; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., p. 31-27, par. 3101.24). Beldock, P. J., Ughetta, Kleinfeld, Christ and Rabin, JJ., concur.