
    In the Matter of Susan A. Lee, an Infant. Arthur Foulds, Respondent; “John Doe” et al., Appellants.
   In a habeas corpus proceeding to obtain custody of an infant, the appeal is (1) from an order dated April 8, 1958 sustaining the writ, awarding custody to respondent, and directing appellants to deliver custody of the child to respondent, (2) from an order dated April 8, 1958 denying a motion (a) for the examination of respondent and his wife before trial, (b) for blood-grouping tests of respondent, respondent’s wife, and the infant, and (3) from so much of an order dated April 25, 1958 as resettled the order dated April 8, 1958 denying, inter alia, the motion for examination before trial. Order dated April 8, 1958 sustaining writ of habeas corpus, and resettled order dated April 25,1958 affirmed, without costs. No opinion. Appeal from order dated April 8, 1958 denying, inter alia, the motion for examination before trial dismissed, without costs. By appealing from the order dated April 25,1958 appellants waived the right to continue to prosecute the appeal from the original order. (Cf. Van Valkenburgh v. Lutz, 6 A D 2d 812.) Nolan, P. J., Ughetta and Hallinan, JJ., concur; Beldock and Kleinfeld, JJ., concur in the dismissal of the appeal from the order dated April 8, 1958, but dissent from the affirmance of the order dated April 8, 1958 sustaining the writ of habeas corpus, and from the affirmance of the resettled order dated April 25, 1958, and vote (a) to modify the resettled order so as to grant the motion to examine respondent and his wife before trial and (b) to reverse the order sustaining the writ of habeas corpus and to dismiss the writ without prejudice to a renewal of the application for a writ after completion of the examination before trial, with the following memorandum: In our opinion, an examination before trial in a habeas corpus proceeding is authorized under section 308 of the Civil Practice Act. Moreover, the facts and circumstances herein justify the exercise of discretion in favor of appellants as to the items and records sought to be examined. (People ex rel. Glasier v. Glasier, 1 Misc 2d 650; 42 W. 15th St. Corp. v. Friedman, 208 Misc. 123.)  