
    Cornelius J. Sullivan, Appellant, v. Ryan-Parker Construction Company, Respondent.
    (No. 2.)
    First Department,
    December 15, 1911.
    Discovery — examination of party before trial—theory of action — defenses.
    Where a defendant has moved to transfer a suit from the Special to the Trial Term calendar'on the ground that it was an action at law, which motion was granted and not appealed from, on a subsequent motion for the examination of defendant before trial it cannot raise the point that the suit is in equity for an accounting.
    An order for an examination before trial may not allow the plaintiff to examine the defendant as to defenses set up in its answer.
    Appeal by the plaintiff, Cornelius J. Sullivan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of November, 1911, granting the defendant’s motion to vacate an order for the examination of the defendant before trial.
    
      Eli J. Blair, for the appellant.
    
      Charles A. Winter, for the respondent.
   Miller, J.:

The motion was granted on the ground that the . suit was one in equity for an accounting, but, for the reasons stated by us on the appeal from the order denying a motion for a discovery and inspection, decided herewith (Sullivan v. Ryan-Parker Construction Co., No. 1, 148 App. Div. 243), the defendant cannot raise that point. The plaintiff did not appeal from the order transferring the cause to the Trial Term. He is willing to try the case as an action at law for damages, and the defendant cannot now object to doing so. It is manifest that the plaintiff cannot now safely proceed to trial without having had an examination of the defendant as well as an inspection of its books and papers.

By the 6th subdivision of the order for examination it is provided that the plaintiff may examine the defendant respecting its defenses, which of course was not allowable.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the order for the examination of the defendant before trial should be modified by striking therefrom the 6th paragraph or subdivision.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and order for examination modified as indicated in opinion. Order to be settled on notice.  