Kallus v. Sadacca , 175 N.Y.S.2d 124 ( 1958 )

In an action to recover damages for breach of contract, damages for alleged fraudulent representations, and the reasonable value of services performed, an order was entered granting appellant’s motion to strike out respondent’s answer on the ground of willful failure to appear for examination before trial, and to direct the entry of judgment, unless respondent appear and submit to examination on a day certain. The appeal is from so much of the order as conditionally strikes out the answer and conditionally directs judgment. Appellant contends that respondent’s default was willful and that he is entitled to relief under section 299 of the Civil Practice Act, without the conditions imposed. Order insofar as appealed from affirmed, with $10 costs and disbursements. If it be assumed that the default was willful, nevertheless the Special Term had discretion to grant or deny the drastic relief which appellant sought. We find no reason in the record submitted to interfere with the exercise of such discretion (cf. Mack v. Edell, 284 App. Div. 1022; Levine v. Barricini, 278 App. Div. 801). The examination is to proceed on a date to be fixed in the order entered hereon. Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur. Settle order on notice.