Roselieve v. Erie Railroad

—• Order entered on February 20, 1961, striking defendant’s answer unless it appears for examination before trial, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion denied, with $10 costs. Implicit in the order of November 28, 1960, granting plaintiff leave to file a note of issue prior to completion of pretrial proceedings, is the preservation of the defendant’s priority in respect of the examinations before trial. If changed circumstances dictate the prior examination of the defendant, they should be made the basis for an appropriate modification of the order of November 28, 1960. Concur —• Breitel, J. P., Rabin, Valente, McNally and Bastow, JJ.