Opinion
June 16, 1947.
In an action to recover money alleged to have been loaned by plaintiff to defendant, order granting motion by plaintiff to vacate notice of examination before trial modified on the law and the facts by striking from the first ordering paragraph the words "in all respects" and "it is further" and inserting after the word "granted" in said paragraph the words and figures, "as to items 2, 3, 4, 17 and 18, and in all other respects denied"; and by striking out the second ordering paragraph. As so modified, the order is affirmed, without costs. In our opinion the denial of the examination in its entirety was an improvident exercise of discretion. (Cf. Gramatan Nat. Bank Trust Co. v. Sagamore Apts., Inc., 241 App. Div. 840.) Examination was properly refused, however, as to items 2, 3 and 4, which are repetitious, and as to items 17 and 18, which are unnecessary. The examination shall proceed on five days' notice. Hagarty, Acting P.J., Carswell, Adel, Nolan and Sneed, JJ., concur.