
    Edward M. Miller et al., Respondents-Appellants, v Herbert Daub, Appellant-Respondent, Capitol Enterprises Jewelry Corp., Respondent, et al., Defendant.
    Supreme Court, Appellate Term, First Department,
    January 20,1987
    APPEARANCES OF COUNSEL
    
      Jurón & Minzner, P. C. (Albert A. Jurón of counsel), for appellant-respondent. Moore, Wohl & Newman, P. C. (Louis I. Newman and Gary M. Gash of counsel), for respondents-appellants.
   OPINION OF THE COURT

Per Curiam.

Order entered May 31, 1985 and judgment entered June 7, 1985 modified by granting judgment in favor of appellant Daub against plaintiffs on the first counterclaim in the sum of $2,500; as modified, order and judgment affirmed, with $25 costs to the appellant.

Based upon defendant Daub’s exhibit C and the testimony received at trial, defendant should have been awarded judgment on the first counterclaim. As to the main cause, we think the court should have admitted and considered the deposition testimony of the absent nonparty witness Padrusch. It appears from the record that the witness’ attendance was unable to be procured despite diligent efforts by plaintiffs as well as by the trial court (CPLR 3117 [a] [3] [iv]). Nonetheless, even after allowing for this evidence, we are in agreement with the determination below that plaintiffs’ case was not made by a preponderance of the evidence. Accordingly, so much of the order and judgment as dismissed the complaint is affirmed.

Hughes, P. J., Riccobono and Sandifer, JJ., concur.  