
    David L. Gittlitz et al., Respondents, v. Robert S. Lewis, Appellant.
   Appeal by defendant from an order of the Supreme Court, Nassau County, dated May 20, 1960, which denies his motion to vacate plaintiffs’ notice of examination before trial, which grants plaintiffs’ cross motion to strike out defendant’s answer and for judgment unless he makes himself available for examination; and which, upon default in the performance of the condition stated, allows plaintiffs to resettle the order by striking out defendant’s answer. Order reversed, with $10 costs and disbursements, defendant’s motion granted, and plaintiffs’ cross motion denied, without prejudice: (1) to an application by plaintiffs to examine defendant in Colorado on written interrogatories or by open commission; or (2) to the plaintiffs’ service of a new notice to examine defendant on a date immediately prior to the trial of the action, as plaintiffs may be advised. Defendant is a resident of Denver, Colorado, and is permanently employed there. Under the circumstances, to require his presence at this time for an examination here would be an undue hardship upon him. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.  