Mack v. Edell

Order reversed on the law and facts, without costs of this appeal to any party and plaintiff’s motion denied, without costs. Memorandum: There *1023is nothing in the record indicating that defendant Edell’s failure to appear for examination was that willful failure contemplated by the statute (Civ. Prae. Act, § 299) which permits the striking of his answer. That the order so doing was conditional does not cure the fact that appellant’s conduct was such that there was nothing upon which a court might exercise its discretion. All concur. (Appeal from an order striking out the answer of defendant…