Brower v. Stabler , 183 N.Y.S.2d 463 ( 1959 )

In an action to recover damages for personal injuries, the appeal is from so much of an order as conditionally grants appellant’s motion to dismiss the complaint for respondent’s willful failure to testify at an examination before trial, pursuant to notice under section 299 of the Civil Practice Act. Order insofar as appealed from affirmed, with $10 costs and disbursements. Section 299 is discretionary. The record presents no reason to interfere with the exercise of the discretion of the Special Term. (Kallus v. Sadacca, 6 A D 2d 815.) The examination is to proceed on a date to be fixed in the order entered hereon. Wenzel, Acting P. J., Beldoek, Murphy, Hallinan and Kleinfeld, JJ., concur. Settle order on notice.