County Trust Co. v. Fernandes

31 A.D.2d 744, 297 N.Y.S.2d 277, 1969 N.Y. App. Div. LEXIS 4785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1969
• Status: Published

Opinion

Appeal as limited by appellants’ brief (1) from so much of an order of the Supreme Court, Westchester County, entered April 21, 1967, as granted plaintiff’s motion to strike out defendants’ answer because of the failure of defendant David B. Fernandes to appear for his examination before trial, and (2) from the judgment entered April 25, 1967 pursuant to said order. Order reversed insofar as appealed from and judgment reversed, on the law and the facts, with $10 costs and disbursements, and plaintiff’s motion disposed of by directing that defendant David B. Fernandes shall appear for examination before trial at a time and place to be fixed in a written notice of not less than 10 day's, to be given by plaintiff. In our opinion, having been snowbound, without telephone service or the use of a car, is an adequate excuse for the default in failing to appear for an examination before trial and entitles defendants to a further adjournment. Brennan, Acting P. J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.