Di Carlo v. Guttman

Appeal from so much of an order as on reargument adhered to the original decision denying appellants’ motion to vacate a notice of examination before trial. The order granted each party the right to examine the other, with the right to appellants to examine first. Order insofar as appealed from affirmed, with $10 costs and disbursements. The notice of examination was untimely for failure to comply with our special rule (Rules App. Div. [2d Dept.], special rule, eff. Jan. 15, 1957) and for failure to explain the delay. However, appellants’ request to examine the adverse parties before trial long after they filed their statement of readiness was also untimely. The discretion exercised in favor of appellants in granting them the untimely examination justifies the discretion exercised against them. Nolan, P. J., Wenzel, Beldock, Ughetta and Hallinan, JJ., concur.