
    David L. Conklin and James S. Cully, Respondents, v. Richard Irvin & Company, Inc., Appellant.
   The order should be modified by inserting, instead of the words “ Also concerning the defendant’s refusal to further carry out the contract herein with plaintiffs,” the words “ Whether the defendant refused to carry out the contract with plaintiffs; ” and as modified affirmed, without costs to either party. The plaintiffs allege in paragraph 4 of the complaint that on or about the 29th day of September, 1917, the defendant refused further to accept any ore shipped by plaintiffs or to pay for any further ore, and that the defendant expressly repudiated the contract. As it is not denied that the witness Pritchard is acquainted with the facts, his testimony is relevant to the plaintiffs’ cause of action, and, therefore, might be had in an order for examination before trial. But the plaintiffs should not be allowed to go further than actually to develop the fact alleged. All questions as to the reason why defendant refused to accept the ore, if it did so refuse, or as to the reason why it refused to accept further shipments, if it did so refuse, or as to the character and quality of the ore, or any other facts and circumstances that are material only to the defense or the counterclaim, should not be permitted on this examination. The order is, therefore, modified as above stated, and as so modified is affirmed, without costs. Jenks, P. J., Mills, Blaekmar and Jayeox, JJ., concurred; Rich, J., voted to affirm. Order to be settled before Mr. Justice Blaekmar.  