Opinion
December 30, 1953.
Defendant appeals from resettled order granting plaintiff's motion to examine defendant before trial. Order modified by striking items 1 and 2 from the ordering paragraph and, as so modified, affirmed, without costs. The allegations that plaintiff prepared and delivered samples and that defendant cancelled the order, contained in the complaint, have been admitted in the answer. Accordingly, examination as to those matters may not be said to be material and necessary in the prosecution of the action by plaintiff. However, tender of performance by plaintiff has been denied, and therefore examination as to such issue was properly granted. The examination may proceed upon notice of not less than five days. Adel, Acting P.J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur.