
    Isaac Rosenfield and Others, Appellants, v. Al Heller, Otherwise Known as “Albert,” “Alfred ” and “Alexander ” Heller, Respondent.
    Supreme Court, Appellate Term, First Department,
    January 7, 1926.
    Depositions — motion to vacate notice for examination of plaintiffs for purpose of supporting defense — insufficiency of defense warrants vacation of notice.
    A notice for the examination of the plaintiffs for the purpose of supporting a possible defense to the action herein should be vacated since said defense is so obviously insufficient on its face that it is evident that no evidence in support thereof can be produced on the trial.
    Appeal by plaintiffs from an order of the City Court of the City of New York entered in favor of the defendant.
    
      Hollander & Bernheimer [Harry T. Zucker of counsel], for the appellants.
    
      Ruttenberg & Ruttenberg [Norbert Ruttenberg of counsel], for the respondent.
   Per Curiam.

While ordinarily it is not the office of the court to inquire into the sufficiency of a defense where the motion is to vacate the examination of a party for the purpose of supporting it when, as here, the attempted defense is so palpably insufficient on its face that no evidence in support thereof could be adduced upon the trial, we feel warranted in ordering a vacation of the notice. Nowhere does the defense allege a single act done by plaintiffs to the actual injury of the defendant. The order appealed from is reversed and the notice for examination is vacated.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

All concur; present, Guy, Wagner and Lydon, JJ.  