Majority
p. 814Robert Livingston et al., Appellants, v. Robert L. Mayes, Defendant, and Niagara Frontier Transit System, Inc., Respondent.
Order unanimously reversed, without costs of this appeal to any party, and motion denied, without costs. Memorandum: There is nothing in the record indicating that failure of plaintiffs to appear for examination before trial was that willful failure contemplated by the statute. (Civ. Prac. Act, § 299, now CPLR 3126.) (Appeal from order of Erie Special Term dismissing the complaint on the merits in an automobile negligence action.) Present — Williams, P. J., Bastow, Goldman, Noonan and Del Veechio, JJ.