Mae Mcguire v. Emil Pick

[8 A.D.2d 800 Page 800] Order of February 27, 1959 granting plaintiff's motion to vacate defendant's notice to examine plaintiff before trial and
to strike defendant's answer and denying defendant's cross motion in branch, modified, on the law and in the exercise of discretion,
to deny so much of the motion as sought to vacate the notice of examination, and to grant so much of the cross motion as sought
to stay all proceedings until plaintiff complies with rule 9-a of the Rules of Civil Practice, without costs to either party.
Order of March 13, 1959 denying so much of defendant's cross motion, in branch, as sought to strike the cause from the General
Jury Calendar reversed, on the law and in the exercise of discretion, and the cross motion, in branch, granted, without costs
to either party. Generally, the rule governing readiness certificates should be strictly enforced (Price v. Brody, 7 A.D.2d
204). However, rigid adherence to technical rules of procedure may not be permitted to interfere with the interests of substantial
justice (Civ. Prac. Act, 105). That is never the purpose of such rules and the court is always possessed of power to prevent
such effect. In this case the certificate of readiness was served and filed, apparently through a misunderstanding between
counsel, while defendant's counsel, to the knowledge of plaintiff's counsel, was about to leave on an extended vacation. Actually,
the certificate of readiness was served on December 22, 1958. On that day defendant served his notice to examine plaintiff
before trial. On December 23, 1958 the certificate was filed. In the meantime, defendant's lawyer left the country on a vacation.
On the day after the [8 A.D.2d 800 Page 801]