
    In the Matter of the Application of Joseph S. Robinson for Leave to Take Testimony and to Secure the Production of Certain Records and Papers and Make Copies Thereof. Joseph S. Robinson, Respondent; Abraham L. Berman and Bert Lahr, Appellants.
   An appeal from an order denying appellants’ motion to vacate an ex parte order made October 5, 1936, purportedly pursuant to section 295 of the Civil Practice Act, rule 123 of the Rules of Civil Practice, “ and all other sections of law thereto appertaining,” for the taking of testimony by the respondent, an expected party to an action about to be brought for damages for the alienation by one of the appellants of the affections of respondent’s wife, and for alleged criminal conversation, and to vacate certain subpoenas duces tecum issued under the ex parte order; order denying the motion thus to vacate reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Subpoenas duces tecum still outstanding also are vacated. The respondent did not set forth in his application for the ex parte order any circumstances which render it necessary for the protection of his rights that the testimony of the persons and corporations mentioned in this appeal should be perpetuated. Therefore, the petition did not comply with the provisions of section 295 of the Civil Practice Act, and rule 123 of the Rules of Civil Practice. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur. Settle order on notice.  