St. Clair E. Miller, Plaintiff-appellant, v. American Export Lines, Inc., Andpersonnel Physician, American Export Lines, Inc., Defendants-appellees, 313 F.2d 218 (2d Cir. 1963)

Appellant, proceeding pro se, filed a complaint which though inartistically drafted, appears to have alleged a cause of action for wrongful denial of employment, in violation of a Working Agreement between the National Maritime Union, of which appellant is a member, and the appellee corporation. On August 15, 1962, appellees moved for summary judgment. Thereafter, on September 16, 1962 appellant filed an amended complaint as of right¹  apparently alleging a cause of action for defamation, as well as a claim of wrongful denial of employment. On October 16, 1962, the district court granted defendant's motion for summary judgment and ordered the action dismissed.

On the hearing of this appeal before us it developed that the district court at the time that it passed on the motion for summary judgment as to the first complaint was not aware of the fact that the plaintiff had filed an amended complaint.

Since the court did not have the amended complaint before it, its ruling dismissed a complaint that had already been withdrawn and the judgment was a nullity. Cf. Park-In Theatres, Inc. v. Paramount-Richards Theatres, Inc., 9 F.R.D. 267, 269 (D. Del. 1949); Angelini v. Merchants Despatch Transport Co., 253 App. Div. 506, 3 N.Y.S.2d 493 (4th Dept. 1938).

The appeal must therefore be dismissed.

Appeal dismissed.