Du Bois v. Iovinella
| Decision Date | 29 December 1961 |
| Citation | 15 A.D.2d 616,222 N.Y.S.2d 460 |
| Parties | Mildred DU BOIS, Plaintiff, and Frederick DuBois, Appellant, v. Silvino IOVINELLA, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Alexander Grasso, Frank N. Grasso, Schenectady, for appellant.
Carter & Conboy, Albany, Forrest N. Case, Jr., Albany, for respondent.
Before BERGAN, P. J., and COON, GIBSON, REYNOLDS and TAYLOR, JJ.
Appeal from an order of the Supreme Court at Special Term entered in the Schenectady County Clerk's office on April 26, 1961 which granted a motion by defendant for an order striking the pleading of plaintiff, Frederick DuBois, pursuant to section 299 of the Civil Practice Act. The moving affidavit does not demonstrate the default of appellant to have been so clearly deliberate or contumacious as to justify the extreme and drastic relief which has been granted. We think that he ought to be afforded another opportunity to appear for examination.
Order reversed and the motion to strike the pleading denied, without costs. If the parties are unable to agree as to the time when, place where and officer before whom the examination shall proceed, settle order on notice.
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