Levine v. Barricini

278 A.D. 801, 104 N.Y.S.2d 288

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1951
• Status: Published

Opinion

Per Curiam.

Under all the facts and circumstances disclosed in this record, we find that Special Term should not have denied defendant’s motion to permit defendant and witness to appear for examination or granted plaintiff’s motion to strike out defendant’s answer and enter judgment for $0,319.32 in plaintiff’s favor by default. The claimed default was not so clearly deliberate or contumacious as to justify the extreme and drastic relief herein granted.

The orders and judgment appealed from should be reversed and defendant’s motion for an order permitting him and the witness to appear for examination, staying plaintiff from proceeding in the action and opening defendant’s default should be granted; and plaintiff’s motion for an order adjudging defendant in contempt, striking out his answer and for judgment as prayed for in the complaint should be denied, and defendant and the witness should be permitted to appear for examination at a time and place to be fixed by the order to be entered herein. Settle order.

Peek, P. J., Dore, Cohn, Van Yoorhis and McCurn, JJ., concur.

Orders and judgment unanimously reversed and defendant’s motion for an order permitting him and the witness to appear for examination, staying plaintiff from proceeding in the action and opening defendant’s default granted; plaintiff’s motion for an order adjudging defendant in contempt, striking out his answer and for judgment as prayed for in the complaint denied, and the defendant and the witness permitted to appear for examination at a time and place to be fixed in the order to be entered herein. Settle order on notice. [See post, p. 905.]