Majority
Order, Supreme Court, New York County, entered on June 17, 1971, affirmed, without costs and without disbursements. No opinion. Concur—Stevens, P. J., Kupferman, Murphy and Capozzoli, JJ.; McGivern, J., dissents in the following memorandum: Although the conduct of appellant and counsel is almost wholly inexplicable, I think it sufficient if we but refuse to vacate the defendant’s default in respect of the examination before trial. And, although I am alive to the firm policy of this court not to condone neglect on the part of counsel, I think an uncontested assessment, resulting in the substantial sum of over $155,000, could, in a provident exercise of discretion, be vacated on terms significant enough to serve as a caution to future parties and their attorneys, (Keenan v. Waring, 12 A D 2d 601 .) Thus, I would vacate the default on the assessment of damages, upon tender and payment of $250 additional costs, together with payment of the costs and disbursements taxable to date, including this appeal, to be charged to and payable by the defendant and his attorney.