
    William I. Margolies, Respondent, v. Albert A. Paris, Appellant.
   In an action to recover the reasonable value of professional services rendered, the appeal is from an order of the County Court, Westchester County, entered May 20, 1959, denying appellant’s motion to vacate an order of said court entered April 29, 1959 striking out appellant’s answer for failure to appear for examination before trial, and from the judgment entered thereon. Order entered May 20, 1959 and judgment reversed, without costs, and motion to vacate order entered April 29, 1959 granted, and motion to strike out appellant’s answer denied. In our opinion, the default suffered on April 20, 1959 was not intentional. Appellant, a resident of Sullivan County, may be examined before trial pursuant to notice only in the county of his residence. (Civ. Prac. Act, § 300.) Beldoek, Hallinan and Kleinfeld, JJ. Concur; Wenzel, Acting P. J., dissents and votes to affirm the order entered May 20, 1959 and the judgment entered thereon, with the following memorandum: In his brief appellant attempts to argue the merits of the motion on which he defaulted. This is but one factor to be considered on his application. Previously, appellant had defaulted in answering; thereafter, he twice failed to appear for examination before trial. Thereafter, he again defaulted on the motion to strike out his answer. Ad interim, he gave two bad checks for costs awarded respondent on the opening of a prior default. Under the circumstances here disclosed, I do not think it may be said that the County Court abused its discretion in denying this motion. It is interesting to note that the respondent herein was obliged to move to dismiss this appeal in order to get the appellant to perfect it. Murphy, J., deceased.  