
    Ernest J. Conway, Appellant, v. Walter C. Hewitt, Sr., Respondent.
   In an action for money had and received, the appeal is from so much of an order as vacated a provision contained in appellant’s notice of examination before trial which required respondent to produce his Federal and State income tax returns showing the cost, sale price, cost of selling and capital gains in respect to certain real property involved in the action. Order insofar as appealed from affirmed, with $10 costs and disbursements. In our opinion, the learned Special Term properly vacated the demand for the production of respondent’s Federal and State income tax returns since the papers disclosed no adequate showing that the returns would reveal any fact material or necessary to the prosecution of appellant’s cause of action (Paliotto v. Hartman, 2 A D 2d 866; O’Grady v. Burr, 2 A D 2d 712; Kathleen Foley, Inc. v. Gulf Oil Corp., 3 A D 2d 928). Wenzel, Acting P. J., Beldock, Murphy, Hallman and Kleinfeld, JJ., concur.  