
    Samuel Ehrlich, Respondent, v. The New York Central Railroad Company, Appellant.
   In an action to recover damages for personal injuries sustained by the plaintiff, a passenger, by reason of,the alleged negligence of the defendant carrier when its train collided with a passing train or with some protrusion therefrom, order granting examination of the defendant before trial and discovery and inspection of documents modified by striking therefrom item No. 2 in the direction to produce, and as thus modified affirmed, so far as appealed from, without costs; the examination to proceed on five days’ notice. In view of the denial by the defendant that the accident occurred, items 4 and 5 in the direction for examination and item 1 in the direction to produce are material and necessary. The provision struck from the order relates to records and reports which are not evidence and cannot be made the subject of discovery and inspection. (People ex rel. Lemon v. Supreme Court, 245 N. Y. 24, 29, approving Falco v. N. Y., N. H. & H. R. R. Co., 161 App. Div. 735, 737.) Lazansky, P. J., Davis, Johnston and Taylor, JJ., concur; Hagarty, J., not voting.  