Opinion
January, 1930.
Order denying plaintiff's motion to vacate notice of examination, subpoena and subpaena duces tecum, and directing that plaintiff's deposition be taken as to certain matters and that plaintiff produce certain books and papers affirmed, with ten dollars costs and disbursements. Examination to proceed on five days' notice at same place and hour. It may be that this defense was unnecessary and that proof of defendants' ownership could be made under the general denial, but plaintiff, in so far as the record discloses, made no motion to strike out this defense, and the question of its propriety cannot be determined upon this appeal. Treating it, therefore, as a proper defense, the matters upon which examination of plaintiff is sought clearly concern the defense of title in defendants. Young, Kapper, Hagarty and Carswell, JJ., concur; Lazansky, P.J., concurs in result.