Levine v. Moskowitz

McAvoy, J.:

The ruling now under review raises the question: May a party upon whose attorney a notice to appear for examination before trial is served, have inflicted upon him the penalty of striking out his pleading in the event that he fails to attend pursuant to a notice? As this penalty has inherently the same nature as that of a punishment for contempt through disobedience of an order or subpoena, the same considerations must govern its use.

No copy of a notice to attend the examination was served upon the defendant. No subpoena or order of the court requiring his appearance was served…