Majority
Headnote
Appeal from so much of an order of the Supreme Court, entered in the New York county clerk’s office on the 6th day of January, 1914, as resettled, as denies a motion to strike out the answer and to permit plaintiff to proceed as upon a default in pleading.In view of the statements on the argument by defendant’s counsel that his client would submit to examination if a proper bill of particulars were served, and by counsel for plaintiff that such service had been that day made, we think the proper disposition of this appeal is to modify the order appealed from so as to permit a renewal of the motion at any time when it maybe made to appear that defendant has refused to submit to examination pursuant to the commission heretofore issued for that purpose. So far as the refusal of other witnesses to submit to examination is concerned, we see no ground for punishing defendant. As so modified the order will be affirmed, without costs. Present —Ingraham, P. J., McLaughlin, Clarke, Scott and Hotchkiss, JJ. Order modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.