Carpenter Motor Vehicle Co. v. Marshall

Appeal dismissed, with $10 costs and disbursements. Until defendant’s default in failing to obey the order for his examination shall be opened, defendant cannot review such an order, in which b,y his own default he is deemed to have acquiesced. Flake v. Van Wagenen, 54 N. Y. 25; Jones Lumber Co. v. Fulton, 123 App. Div. 386, 107 N. Y. Supp. 942. Neither may defendant appeal from the later order modifying the default order, since it was an application to the discretion of the court below, over which this court has no control. Place v. Hayward, 100 N. Y. 626, 3 N. E. 199; Matter of National Gramophone Corp., 82 App. Div. 593, 596, 81 N. Y. Supp. 853. See, also, 151 N. Y. Supp. 1108.