
    Carmelo Biondolillo, Respondent, v. Robins Dry Dock and Repair Company, Appellant.
   Order, in so far as it denies defendant’s motion to vacate items three and four of the notice of examination, reversed on the law and the facts, without costs, and motion to that extent granted. Item three does not involve an issue, and item four involves a conclusion of fact. If defendant will admit, by stipulation, that in connection with the repair of the steamship Transportation it had a contract with the United Marine Contracting Corporation to scale or clean the steamship, and also will admit, as stated in its brief, the facts set forth in item two, there will be no basis for the examination, for, with those items admitted, the terms of the contract, if any, between the defendant and the United Marine Contracting Corporation are immaterial. In the event of such stipulation, the order is reversed on the law and the facts, without costs, and the motion granted as to all of the items. If defendant does not so stipulate, the order is affirmed, without costs, as to items one and two and the examination as to them will proceed on five days’ notice. Lazansky, P. J., Hagarty, Scudder, Tompkins and Davis, JJ., concur.  