Farber v. J. Chein & Co.

It appears that prior to November 7, 1956, the date of the order precluding the plaintiff in the event that he failed to produce the agreement dated September 15, 1936, plaintiff was aware of the fact that he was unable to comply with said order as is evidenced by his bill of particulars dated November 2, 1956. Therefore, it was incumbent on the plaintiff to make an appropriate application to the court prior to the making of the order of November 7, 1956. Plaintiff failed to do so at his own risk and we may not fail to give effect to an order which might have been avoided if the plaintiff had acted with diligence and made a prompt disclosure to the court of the relevant circumstances. Order unanimously modified by directing that the preclusion be unconditional, without prejudice to an appropriate application to be relieved of the order of November 7, 1956, with $20 costs and disbursements to the appellant. Settle order on notice. Concur — Botein, J. P., Frank, Valente, McNally and Bastow, JJ.