Schriro v. Kennell

223 A.D. 786 | N.Y. App. Div. | 1928

Order reversed upon the law, with ten dollars costs and disbursements, and motion to set aside plaintiffs notice of examination before trial granted, with ten dollars costs, without prejudice, however, to an application to open default and reinstate notice. The defendant attended for examination pursuant to a previous notice, but the plaintiff defaulted in appearing; after such default the plaintiff was not entitled to disregard and abandon the proceedings taken by him and to serve another notice, without application to the court for permission to serve such notice. Lazansky, P. J., Rich, Hagarty, Seeger and Carswell, JJ., concur.