
    Grand Union Co., Appellant, v. 4944 Restaurant Corp., Respondent.
   Order [6771], entered on July 12, 1963, vacating the plaintiff’s notice to examine before trial one Stanley Pilate as a witness, unanimously affirmed, with $10 costs and disbursements to respondent. The affidavit submitted in opposition to the motion to vacate fails to sufficiently demonstrate — in the light of the circumstances concerning this witness—that the witness is “without the state” within the contemplation of section 288 of the Civil Practice Act (now OPLR 3101). (See Matter of Buohmm, 270 App. Div. 522.) Order [6772], entered on September 16, 1963, granting reargument of the order vacating the plaintiff’s notice to examine the witness and upon such reargument adhering to the original determination, unanimously affirmed, with $10 costs and disbursements to respondent. (See memorandum in appeal No. 6771.) Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.  