Livingston v. Mayes

Order unanimously reversed, without costs of this appeal to any party, and motion denied, without costs. Memorandum: There is nothing in the record indicating that failure of plaintiffs to appear for examination before trial was that willful failure contemplated by the statute. (Civ. Prac. Act, § 299, now CPLR 3126.) (Appeal from order of Erie Special Term dismissing the complaint on the merits in an automobile negligence action.) Present — Williams, P. J., Bastow, Goldman, Noonan and Del Veechio, JJ.