Opinion
April 30, 1937.
Cross-appeals from order granting in part and denying as to remainder motion made by plaintiff to examine defendant before trial on specified items and for production of books and records relative thereto. On appeal by plaintiff, order modified by striking out as to examination items (w), (z) and (aa), and inserting in place thereof items 53, 59, 60 and 61 of the notice of motion; by adding items of the notice numbered 8, 9, 10, 11, 17, 18, 19, 20, 21, 22, 26, 27, 28, 29, 30, 31, 34, 35, 36, 38, 39 and 40, with the exception of the words "or not," wherever they appear; and by striking out as to production of books, records, etc., so much of item (d) as reads "limited to the period for the years 1926 to 1929 inclusive." As so modified, the order, so far as appealed from, is affirmed, without costs. On appeal by defendant, order modified by striking out as to examination items (b) and (c), and as so modified affirmed, without costs. The examination will proceed on five days' notice. The social and financial standing of the husband, even after the making of the separation agreements sought to be set aside, is a proper subject of examination in this action. ( Harding v. Harding, 203 App. Div. 721; affd., 236 N.Y. 514; Brown v. Brown, 209 App. Div. 835; affd., 239 N.Y. 518; Rosenthal v. Rosenthal, 230 App. Div. 483.) In the absence of a concession by defendant that the last separation agreement served to cancel and set aside its predecessors, even though that agreement itself may be and is set aside, examination with respect to such preceding agreements is proper under the allegations of the complaint seeking to set them aside. The commission of adultery and refusal to provide a home clearly relate to the merits of the separation action and may not be the subject of examination. ( Immerman v. Immerman, 230 App. Div. 458; Fried v. Fried, Id. 708.) Lazansky, P.J., Hagarty, Carswell, Davis and Close, JJ., concur.