Opinion
April 26, 1960
Order of March 7, 1960 appealed from, which denied the defendant's motion to vacate the notice of examination before trial, or in the alternative to strike certain items, is unanimously modified on the law, on the facts and in the exercise of discretion, to grant so much of the motion as moved to strike items 4 and 5, and, as so modified, is otherwise affirmed, with $10 costs and disbursements to the appellant. Item 4 seeks to impose upon the defendant the burden of deciding which records, papers or documents, if any, are evidence of waivers, though plaintiff has not alleged a waiver of any condition, and seeks to describe such documents, if any, in terms of their legal effect. Item 5 is vague and indefinite, much too broad, and fails to describe any particular documents or memoranda. Settle order.
Concur — Breitel, J.P., Rabin, M.M. Frank, Stevens and Bastow, JJ.