Mills v. Capello

In an action to recover damages for personal injuries, the appeal is from an order granting a motion to strike out appellant’s answer for failure to appear for examination before trial pursuant to notice. Order modified by adding to the ordering paragraph after the words “stricken out” the words “unless said defendant submit to examination before trial as to the matters set forth in the notice of examination dated September 16, 1957.” As so modified, order affirmed, with $50 costs and disbursements to respondent. Appellant is to appear for examination at a time and place to be specified in the order to be entered hereon. Upon this record, it cannot be said that appellant’s default was willful. It was therefore an improvident exercise of discretion to strike out his answer unconditionally, thus depriving appellant of his day in court. Terms are imposed to encourage diligence in avoiding defaults of this nature and to compensate respondent for loss of time and out-of-pocket disbursements. Wenzel, Acting P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur. Settle order on notice.