Kaye v. Associated Metals & Minerals Corp.

In an action to recover a balance due for services rendered, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County, dated September 7, 1962, as denied its motion to vacate plaintiff’s notice to examine defendant before trial. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. The examination shall proceed on 10 days’ written notice or at such other time and place as may be mutually fixed by written stipulation of the parties. In view of plaintiff’s death on February 3, 1963, this decision is rendered and the order thereon will be entered nunc pro tuna as of January 28, 1963 — the date of the submission of the appeal to this court (see MacLean v. Hart, 262 N. Y. 552; Russell v. Butler Grocery Co., 240 App. Div. 31). Beldoek, P. J., Ughetta, Christ, Rabin; and Hopkins, J J., concur.