Kallus v. Sadacca

Appellate Division of the Supreme Court of New York

Kallus v. Sadacca

6 A.D.2d 815, 175 N.Y.S.2d 124, 1958 N.Y. App. Div. LEXIS 5561

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 16, 1958

StatusPublished

This text of 6 A.D.2d 815 (Kallus v. Sadacca) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kallus v. Sadacca, 6 A.D.2d 815, 175 N.Y.S.2d 124, 1958 N.Y. App. Div. LEXIS 5561 (N.Y. Ct. App. 1958).

Pincite

Opinion

In an action to recover damages for breach of contract, damages for alleged fraudulent representations, and the reasonable value of services performed, an order was entered granting appellant’s motion to strike out respondent’s answer on the ground of willful failure to appear for examination before trial, and to direct the entry of judgment, unless respondent appear and submit to examination on a day certain. The appeal is from so much of the order as conditionally strikes out the answer and conditionally directs judgment. Appellant contends that respondent’s default was willful and that he is entitled to relief under section 299 of the Civil Practice Act, without the conditions imposed. Order insofar as appealed from affirmed, with $10 costs and disbursements. If it be assumed that the default was willful, nevertheless the Special Term had discretion to grant or deny the drastic relief which appellant sought. We find [816]*816no reason in the record submitted to interfere with the exercise of such discretion (cf. Mack v. Edell, 284 App. Div. 1022; Levine v. Barricini, 278 App. Div. 801). The examination is to proceed on a date to be fixed in the order entered hereon. Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur. Settle order on notice.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for breach of contract, damages for alleged fraudulent representations, and the reasonable value of services performed, an order was entered granting appellant’s motion to strike out respondent’s answer on the ground of willful failure to appear for examination before trial, and to direct the entry of judgment, unless respondent appear and submit to examination on a day certain. The appeal is from so much of the order as conditionally strikes out the answer and conditionally directs judgment. Appellant contends that respondent’s default was willful and that he is entitled to relief under section 299 of the Civil Practice Act, without the conditions imposed. Order insofar as appealed from affirmed, with $10 costs and disbursements. If it be assumed that the default was willful, nevertheless the Special Term had discretion to grant or deny the drastic relief which appellant sought. We find [816]*816no reason in the record submitted to interfere with the exercise of such discretion (cf. Mack v. Edell, 284 App. Div. 1022; Levine v. Barricini, 278 App. Div. 801). The examination is to proceed on a date to be fixed in the order entered hereon. Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur. Settle order on notice.

Cite This Page — Counsel Stack

Bluebook (online)

6 A.D.2d 815, 175 N.Y.S.2d 124, 1958 N.Y. App. Div. LEXIS 5561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kallus-v-sadacca-nyappdiv-1958.

Opinion

Related

Cite This Page — Counsel Stack