In re the Estate of Pipski ( 1934 )

Henderson, S.

This is an application to strike out the respondent’s answer on the ground that he failed to appear for examination before trial after the service upon his attorney of a notice therefor. No order for such examination was obtained and no subpoena was served.

The requested relief may be granted only if authorized by some statute. (Levine v. Moskowitz, 206 App. Div. 194.) A party’s pleading may now be stricken out if he fails to appear for examination pursuant to an order therefor after service thereof upon his attorney (Civ. Prac. Act, § 299), but the Legislature has not sanctioned the infliction of this penalty for failure to appear for examination in response to a mere notice.

Motion denied. Settle order.