Frank v. Kempczynski

Layton, J.:

Plaintiff was served with notice by defendant to appear for the taking of her deposition prior to trial. She did not appear. Her attorney stated on the record that he had advised her to appear but she had refused stating that she would appear but *252once, on the day of trial when she would testify. Defendant has moved for a judgment by default in accordance with Rule 37 (a) of the Superior Court which is the same as the Federal Rule 37(d), 28 U.S. C.A.

The provisions of this rule do not seem to have been construed by the Federal Courts as mandatory. Moore’s Federal Practice, Vol. 4 §…