Opinion
November 10, 1954.
Present — Vaughan, J.P., Kimball, Piper, Wheeler and Van Duser, JJ.
Order reversed on the law and facts, without costs of this appeal to any party and plaintiff's motion denied, without costs. Memorandum: There is nothing in the record indicating that defendant Edell's failure to appear for examination was that willful failure contemplated by the statute (Civ. Prac. Act, § 299) which permits the striking of his answer. That the order so doing was conditional does not cure the fact that appellant's conduct was such that there was nothing upon which a court might exercise its discretion. All concur. (Appeal from an order striking out the answer of defendant Edell and directing judgment by default unless said defendant appears for examination before trial, in an action by a judgment creditor to set aside conveyances of realty by defendant Edell.)