Opinion
March 24, 1952.
Defendant appeals from an order which granted, on terms, plaintiff's motion to cure its default in appearing for examination before trial, vacated a judgment dismissing the complaint, and granted other relief. Order reversed on the law and the facts, with $10 costs and disbursements, and motion denied, with $10 costs. The complaint was dismissed on motion at Special Term for plaintiff's willful failure to appear for examination before trial. On appeal, the order dismissing the complaint was affirmed by this court ( 279 App. Div. 801). Pending such appeal, plaintiff moved, at another Special Term, on substantially the same facts as those which it had submitted in opposition to the motion to dismiss its complaint, to cure its default, to vacate the judgment entered upon the prior order, and to set a date for plaintiff's examination. The motion was granted subsequent to the affirmance of the order upon which the judgment had been entered. The effect of the order appealed from was to nullify the prior order, made at another Special Term, and affirmed on appeal to this court. Such practice has been repeatedly disapproved. ( Platt v. New York S.B.R. Co., 170 N.Y. 451; Reynolds v. Hults, 276 App. Div. 978; Parks v. Welsch, 230 App. Div. 734; Sloan v. Beard, 125 App. Div. 625. ) Moreover, plaintiff's default in appearance was willful, and no valid excuse was offered in support of the motion to cure it. Nolan, P.J., Carswell, Adel, Wenzel and Schmidt, JJ., concur.