Opinion
May, 1932.
Order in so far as it denies plaintiff's motion to examine defendant before trial reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to the extent of permitting an examination of the defendant, in addition to the limited examination granted by the order, as to the items in paragraph 3 of plaintiff's affidavit numbered (1) to (7); and that defendant shall produce on such examination the books and papers denominated in paragraph 4 of said affidavit (e), (f), (g), (h), (i), (j) and (k) in so far as concerns defendant's agreements, and also all books and papers containing entries of matters involved in this action, which books and papers are under defendant's control. So much of the order as grants a limited examination of defendant is affirmed, without costs. Examination to proceed on five days' notice. The action, as alleged in the complaint, is one at law and not in equity. ( Everett v. DeFontaine, 78 App. Div. 219; Hart v. Garrett Co., 87 id. 536; Freeman v. Miller, 157 id. 715.) Under such circumstances, plaintiff is entitled to examine defendant before trial. ( Guinee v. Murphy, Inc., 223 App. Div. 337. ) Lazansky, P.J., Young, Scudder, Tompkins and Davis, JJ., concur.