Majority
Order reversed, with $10 costs and disbursements and plaintiff’s motion granted, without costs and defendant’s motion denied, without costs. Memorandum: Special Term, in granting plaintiff’s motion after service of a summons to examine an officer of the defendant for the purpose of enabling plaintiff- to frame a complaint, provided that his time to serve was extended until 20 days after the taking and filing of such deposition. This proviso, of course, was a shield to protect plaintiff from a dismissal of the action for failure to serve the pleading. The fact that plaintiff saw fit to serve a complaint while an appeal was pending in this court from the order granting the examination did not destroy the protection given by the extension of time contained in the order. The contention of respondent that thereby plaintiff abandoned the protective feature of the order and laid himself open to a motion to dismiss for failure to serve the complaint is without substance or validity. All concur. (Appeal from an order of Niagara Special Term granting defendant’s motion to dismiss plaintiff’s complaint and denying without prejudice plaintiff’s motion to compel defendant to accept service of the complaint.) Present — Kimball, J. P., Williams, Bastow, Goldman and Halpern, JJ.