Opinion
June 5, 1924.
Norwood Walsh ( John C. McCarthy, of counsel), for the appellant.
Charles J. Herson, for the respondent.
Action for injuries to plaintiff's automobile bus resulting from defendant's alleged negligence.
Plaintiff served notice of its desire to examine defendant's president before trial upon defendant's attorneys. Defendant's president failed to appear; his default was taken; plaintiff thereupon moved to stay defendant from defending unless it produced its president for examination. The motion was granted. No notice or subpœna was served upon defendant's president so as to compel him to attend.
The effect of staying all proceedings on the part of defendant was the same as if the court struck out the answer, and such procedure under the circumstances is unwarranted. Levine v. Moskowitz, 206 A.D. 194.
Order reversed and motion denied, with ten dollars costs to appellant to abide the event.
GAVEGAN and MITCHELL, JJ., concur.
Order reversed and motion denied.