
    DOANE et al. v. HESCOCK et al.
    (Supreme Court, Appellate Term, First Department.
    May 21, 1915.)
    Appeal and Error <@=876—Review—Motion to Vacate Order for Examination Before Trial.
    On appeal from a motion to vacate an order for the examination of defendants before trial, the Appellate Term cannot pass on the sufficiency of the complaint, other than to determine that it is not frivolous; and the objection that the answer to any particular question will tend to incriminate will not be considered, because premature.
    [Ed. Note.—Fbr other cases, see Appeal and Error, Cent. Dig. §§ 3549-3559; Dec. Dig. <§=876.1 \
    <S=>For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes
    Appeal from City Court of New York, Special Term.
    Action by Francis IT. Doane and another against Ethan N. Hescock and others. From an order denying a motion to vacate an order for the examination of defendants before trial, defendants appeal.
    Modified and affirmed.
    Argued May term, 1915, before GUY, LEHMAN, and WHITAKER, JJ.
    Lewis R. Conklin, of New York City, for appellants.
    John E. O’Brien, of New York City, for respondents.
   PER CURIAM.

Though there may be doubt as to the sufficiency of the complaint, it is not frivolous, and upon this motion we have no right to pass otherwise upon its sufficiency. Ryan v. Reagan, 46 App. Div. 590, 62 N. Y. Supp. 39. The defendants can upon examination raise the objection that the answer to any particular question will tend to incriminate them, but such objection is, at the present time, premature. Whether any books, papers, etc., will be necessary to refresh the witness’ recollection, and, if so, what papers, can be determined only at the examination, and their production can then be procured by subpoena, and the provision for their production in the order is improper.

Order modified, by striking therefrom the provision requiring the production of books, papers, etc., and, as modified, affirmed, without costs of this appeal to either party, but with disbursements to the appellant.  