General

Yor Electric Corp., Respondent, v. Irving Benowitz, Appellant, et al., Defendant

3 A.D.2d 832·New York Supreme Court, Appellate Division·1957·NY

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Opinion

Yor Electric Corp., Respondent, v. Irving Benowitz, Appellant, et al., Defendant. [MAJORITY] Order unanimously affirmed. The date for the examination to proceed shall be fixed in the order. Settle order on notice. In affirming this order we do not overlook the fact that the last pleading served in this action was the answer of the defendant-appellant to the amended complaint, which answer was served on October 9, 1956. The notice to examine him was served on October 22, 1956, 13 days after the service of the last pleading. He urges the procedure thus adopted by the plaintiff was premature in the light of the provisions of subdivision 1 of rule XX of the Bronx County Supreme Court Rules, and argues the order below should be reversed on this ground alone. We are of the opinion that the defendant-appellant’s objection to the notice of examination grounded on rule XX has been waived since it was not advanced at Special Term. Concur — Botein, J. P., Rabin, Frank, Valente and McNally, JJ.