Opinion
January 25, 1955.
Present — Peck, P.J., Callahan, Breitel, Bastow and Botein, JJ.
Judgment and order appealed from unanimously reversed, without costs. The motion made by the defendant was to strike out plaintiff's complaint on the ground that plaintiff refused to complete his examination before trial. The minutes of the several sessions of the pretrial examination of plaintiff do not disclose that he refused to complete his examination. The requested relief was actually sought upon the ground that plaintiff had failed to produce upon his examination a certain marked map and a list of customers. The extreme penalty of striking out the pleading of a party may only be invoked for failure to obey an order or subpoena served upon a party in connection with such an examination (Civ. Prac. Act, § 405). It appears that upon the last examination of plaintiff on December 23, 1953, he testified that he had been unable to find the marked map to which he had referred on a previous examination. Counsel for defendant was offered other maps prepared by plaintiff as his best recollection of the missing map. These were rejected by the defendant. It does not appear that there was any order complying with the applicable provision of the Civil Practice Act directing the production of the list of customers. The order to be entered herein shall contain a suitable provision directing plaintiff, within a stated time, to furnish to defendant a list of his customers appearing on the addressograph plates in plaintiff's possession with a notation placed opposite the name of each customer claimed by plaintiff not to be a customer of the defendant. In the event plaintiff fails to comply with such direction, defendant is granted leave to renew its motion to strike out the complaint. The examination of the plaintiff will continue at a time and place to be fixed in the order. Settle order.