Opinion
June 15, 1953.
Action to recover damages for breach of contract by defendant Telephonics Corporation and to recover damages for conspiracy by defendants Hlesciak, Craussman and Target Rock Corporation and others in causing defendant Telephonics Corporation to breach said contract and for other relief. Respondents moved to strike out the complaint because of appellant's failure to submit to an examination before trial directed by court order. The Special Term granted the motion and imposed the following terms for opening appellant's default: (1) that appellant pay to respondents $250 and (2) that it submit to the examination. Appellant paid the $250 under protest. Order modified by striking from the ordering paragraphs thereof the words and figures "two hundred fifty dollars ($250)" and by substituting therefor the words and figures "fifty dollars ($50)". As so modified, the order is affirmed, without costs. Respondents are directed to repay $200 to appellant within ten days after the entry of the order hereon. The amount of the money payment directed by the order was an improvident exercise of discretion. Adel, Acting P.J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur.