
    Mojac Finance Co., Inc., Appellant, Respondent, v. Waterside Holding Corporation and Another, Defendants, Impleaded with The Continental Insurance Company, Respondent, Appellant.
    First Department,
    May 29, 1930.
    
      
      Joseph Feldman of counsel [Louis Rosenberg with him on the brief; Louis Rosenberg, attorney], for the plaintiff.
    
      David A. Ticktin of counsel [Abraham Kaplan and Philip Samuels with him on the brief; Powers & Kaplan, attorneys], for the defendant Continental Insurance Company.
   Finch, J.

From an order denying a motion to vacate in tofo a notice of examination in aid of the defense of alleged misrepresentation and mutual mistake, plaintiff appeals. The defendant cross-appeals from so much of the order as denied certain of the relief sought. .

This court having held, in an opinion handed down herewith (229 App. Div. 541), that the defendant insurance company failed to show that there was any issue to be tried upon a motion for summary judgment by the plaintiff arising upon the check by way of a compromise settlement of the fire loss, it follows that the defendant was not entitled to an examination before trial and that the motion to vacate such examination in loto should have been granted.

The order in so far as appealed from by the plaintiff should, therefore, be reversed, with ten dollars costs and disbursements to the plaintiff and the motion to vacate in toto granted. The order in so far as appealed from by the defendant The Continental Insurance Company should be affirmed.

Dowling, P. J., McAvoy and Sherman, JJ., concur; Merrell, J., dissents.

Order so far as appealed from by plaintiff reversed, with ten dollars costs and disbursements to the plaintiff, appellant, and motion to vacate notice of examination in toto granted; in so far as appealed from by the defendant The Continental Insurance Company, affirmed.  