
    Great Atlantic & Pacific Tea Co., Respondent, v. New York, New Haven & Hartford Railroad Company, Appellant.
   Order granting plaintiff’s motion to vacate defendant’s notice to examine plaintiff before trial modified to the extent of reinstating items 9, 11 and 12 of such notice, but eliminating the words, where they appear, “ all relevant facts and circumstances as to ”, “ relating to ”, and bearing upon ”, and, otherwise, such order is affirmed, with $20 costs to defendant-appellant; unless plaintiff further stipulates, on submission of the order to be settled herein, that it elects to rest its case exclusively on the right to recover damages on the differential in the wholesale market value, and it concedes therein that should it be determined that its right to damages may embrace an inquiry into the use to which the merchandise was to be put or into the manner and price at which such merchandise was disposed of, then, that it would not have sustained an “actual loss” and would not be entitled to any recovery, in which event, the order is affirmed, without costs. On a motion affecting the right to an examination before trial we do not reach the question of what is or should be the measure of damages, prima facie, or ultimately, but the parties are free to limit their claims and thus simplify the issues in the case, and consequently, on the examination before trial. Settle order. Concur — Peck, P. J., Breitel, Botein, Frank and McNally, JJ.  