Nowak v. Buffalo Electric Co.

Memorandum : While it is now proper to strike the pleading of a party if he willfully fails to appear for examination pursuant to either an order or notice of examination (Civ. Prae. Act, § 299, as amd. by L. 1955, ch. 497, eff. Sept. 1, 1955), such remedy was not available under section 299 prior to said amendment, for failure to appear in response to a mere notice served, when no order for examination was obtained and no subpcena served; nor did the court have any inherent power to strike out a pleading in such a case. (Levine v. Moskowitz, 206 App. Div. 194; Tebo v. Baker, 77 N. V. 33.)…