
    Herbert L. Skinner, Appellant, Respondent, v. Charles G. Phalen, Respondent, Appellant.
   Order reversed on the law, without costs, in so far as it grants the motion to set aside the service of the subpoena, and in all other respects affirmed. The action of the court in setting aside the subpoena because it was served a few hours before the notice was served was unnecessary. The action is pending. The subpoena was in the action, and should have been obeyed. If there was no sufficient notice to justify the examination, the examination could not proceed, and the subpoena falls with it. Blackmar, P. J., Rich, Kelly, Manning and Young, JJ., concur.  