Opinion
March 18, 1958
Defendant appeals from an order denying her motion to vacate, or, in the alternative, to modify the notice of examination before trial of the defendant, dated December 4, 1957. The notice of examination contains 28 items, many with subdivisions, and requires the production of voluminous books and records. The examination was not limited by Special Term which recognized, as we do, that many of the matters sought to be examined upon relate to the accounting but, nevertheless, are relevant on the issue of what was the arrangement between the parties. We recognize, as did Special Term, the difficulty in attempting to select the proper items at this time. We feel, however, in the circumstances, that some of the items allowed are too general in nature and cover matters that are either irrelevant or unnecessary. In the exercise of discretion, the order is modified by granting the motion to strike all items except items 3, 4, 7(a), 7(b), 12, 13, 14, 19, 20, 21, 25, 26 and 28, and requiring the defendant to produce at the examination all relevant books and records for use in accordance with section 296 of the Civil Practice Act, and otherwise affirmed, without costs. Settle order.
Concur — Rabin, J.P., Frank, Valente, McNally and Stevens, JJ.