
    Howard S. Gerry, Respondent, v. Ink-Tone, Inc., Appellant.
    Supreme Court, Appellate Term, Second Department,
    June 17, 1958.
    
      Stephen A. Wise for appellant.
    
      Sidney M. Spero for respondent.
   Per Curiam.

The appeal from the order dated June 21, 1957 should be dismissed. An order denying a motion to vacate a notice of examination before trial is not appealable without leave (N. Y. City Mun. Ct. Code, § 154).

The order dated January 22, 1958 and judgment entered thereon should be unanimously modified on the facts so as to provide that the motion to strike out the answer of the defendant-appellant is granted unless the defendant, by its president, appears for and submits to an examination before trial in the court below on five days ’ notice, and as so modified, affirmed, without costs on this appeal to either party. Under all the circumstances herein, the default was not shown to be willful and did not justify the drastic relief sought.

Concur — Pette, Hart and Brown, JJ.

Appeal from order, dated June 21, 1957, dismissed, etc.  