Opinion
October 30, 1967
Order of the Supreme Court, Queens County, dated April 26, 1967, reversed, without costs; motion to rehear merits of plaintiff's prior motion which resulted in an order of said court dated March 10, 1967, striking the answer of defendants, granted; and, upon such rehearing, said order dated March 10, 1967 is vacated, defendants' answer is reinstated and plaintiff's said prior motion is granted only to the extent of directing defendants to submit to an examination before trial at Special Term, Part II, Queens County, on a day and hour to be specified by plaintiff in a written 10-days' notice, or at such other time and place as may be mutually agreed upon by the parties. Appeal from order dated March 10, 1967 dismissed, as academic, without costs. Judgment of said court dated June 5, 1967 modified, on the law and the facts, by adding the provisions that the judgment stand only as security in the event defendants fail to comply with the order to be made hereon and that enforcement of the judgment be stayed pending the outcome of the action. As so modified, judgment affirmed, without costs. In our opinion the motion which resulted in the order dated April 26, 1967 was one to rehear or renew based upon additional facts. Such an order is appealable ( Suffolk Nassau Amusement Co. v. Wurlitzer Co., 24 A.D.2d 893, mot. for lv. to app. dsmd. 17 N.Y.2d 669; Bentz v. Krasner, 15 A.D.2d 669; 10 Carmody-Wait 2d, New York Practice, § 70:43). It appears that the default of defendants was not willfull and they should not be deprived of their day in court ( Nomako v. Ashton, 22 A.D.2d 683; Du Bois v. Iovinella, 15 A.D.2d 616). Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.