Opinion
November 14, 1955.
In an action to recover damages for personal injuries, the appeal is from an order which (1) denied appellant's motion for judgment against respondent Dugan for willful default in complying with an order dated January 20, 1955, which granted appellant's motion to strike out said respondent's answer unless it submit to an examination before trial as therein set forth and awarded appellant $10 motion costs; to punish said respondent and its attorneys and special counsel for contempt of court because of the counsel's alleged misconduct and their willful failure to comply with the said order of January 20, 1955; and for other relief; (2) directed that appellant's examination before trial of respondent Dugan be continued to completion and that thereupon appellant be examined by respondents; and (3) permitted respondents to proceed with a motion to dismiss the complaint for lack of prosecution. Order modified by adding thereto a provision that the relief thereby granted to respondent Dugan be conditioned upon payment by it to appellant of the $10 costs provided for in the order of January 20, 1955. As so modified, order affirmed, with $50 costs and disbursements to appellant, payable by respondent Dugan, without prejudice to the institution of a proper proceeding by appellant, if he be so advised, to punish the special counsel for contempt. The $50 costs and disbursements allowed on this appeal and the $10 costs provided for in the order of January 20, 1955, are to be paid within five days after service, on respondent Dugan, of a copy of the order hereon. The manifold difficulties in getting this case ready for trial and the ill will evidently existing between the attorneys stem from the failure of the attorneys for respondent Dugan to honor a notice of examination before trial. We do not have the items of this notice, but the record shows no objection to any item so we assume they were proper. Respondent Dugan simply ignored the notice and waited until a motion was made to strike out its answer and an order entered conditionally granting this relief before making any arrangements to be examined. This practice of ignoring a notice of examination is akin to that of ignoring a demand for a bill of particulars, which has been strongly condemned by the Appellate Division of the Supreme Court, First Judicial Department, in Hersh v. Home Ins. Co. ( 284 App. Div. 428), and again in Inter Co. Painting Co. v. 200 East End Ave. Corp. ( 286 App. Div. 482). There is no proof in the record that the default of respondent Dugan in this matter was not intentional, and the affidavit in its behalf in the record contains no excuse or reason for ignoring the notice. Nor has it made payment of the $10 motion costs directed by the order dated January 20, 1955, pending which it is barred from further proceedings except to review or vacate said order (Civ. Prac. Act, § 1520). Though no formal cross motion was made herein by respondents, they made application, in their answering affidavit, for an order directing appellant to submit to an examination before trial and for other relief. In view of the foregoing, respondents are barred from such affirmative proceedings until the afore-mentioned motion costs are paid. Although it is not expressly stated in the order appealed from, we consider it implied that the leave therein granted respondents to proceed with their motion to dismiss the complaint for lack of prosecution permits them so to do after completion of the examinations before trial, if they be so advised. The record does not show that the special counsel denies making the remarks alleged to have constituted the contempt, or that appropriate amends have been made by him. However, it does not appear that he has been personally served with an order to show cause why he should not be punished. Accordingly, this phase of the matter is reserved, as indicated. Wenzel, Acting P.J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur.