Bliven v. Burrell

252 A.D. 867, 299 N.Y.S. 970, 1937 N.Y. App. Div. LEXIS 6617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1937
• Status: Published

Opinion

Order denying plaintiff’s motion to stay the defendant from taking affirmative steps in the above-entitled action by reason of his failure to appear for examination before trial pursuant to notice duly served, reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. In the exercise of sound legal discretion, the defendant should have been stayed from taking any affirmative steps as a consequence of his failure to appear for examination. (Graziano v. Eagle Pencil Co., 207 App. Div. 225; Roseberg Holding Co., Inc., v. Berman, 214 id. 146.) Hagarty, Carswell, Johnston and Close, JJ., concur; Taylor, J., dissents and votes to affirm on the ground that the notice of examination was a nullity (Civ. Prae. Act, § 300) and defendant may not be subjected to penalty for disregarding it.