
    Victor Levett & Co., Respondent, v. James Randall, Appellant.
   Order granting plaintiff’s motion to vacate defendant’s notice to examine plaintiff before trial unanimously reversed, on the law and in the exercise of discretion, with $20 costs and disbursements to defendant-appellant, and the motion denied, with $10 costs, with leave, however, to plaintiff to renew its motion on proper affidavits establishing hardship or other sufficient ground for not responding to the notice. Plaintiff misreads the statutes. An examination before trial of a party may be sought by notice alone. In that event, if plaintiff seeks to establish proper ground for vacatur therefore it must do so by motion based on proper affidavit (Civ. Prae. Act, §§ 29U, 299, 300; Tripp, Guide to Motion Practice [rev. ed.J, § 66, especially pp. 150-151 of Cum. tiupp., 1949-1955; Berger V. Van Doom, 57 N. if. ti. 2d. 434). Should plaintiff ue able to establish Hardship or other sufficient ground on a renewed motion, for which leave is granted, there is a variety of alternatives available to the parties and the court; an open commission may issue; interrogatories may be utilized; or an examination may be required when one of plaintiff's associates may have occasion to visit the United States, or, in advance of trial, if one of plaintiff’s associates expects to attend as a witness, or as a party. Or, of course, it may appear that there is insufficient reason for having an examination or substitute therefor. On the present record the date for examination is set for December 14, 1959, at the hour and place provided in the original notice. Concur — Breitel, J. P., 1V1. M. Frank, Yalente, McNally and Stevens, JJ.  