
    Ray Elise Newman Meth, Appellant, v. Norman P. S. Schloss and Joseph Harvis, Respondents, Impleaded with Louis K. Newman, Defendant.
    First Department,
    February 3, 1939.
    
      George D. Zahm of counsel [William Both with him on the brief], for the appellant.
    
      Norman Winer of counsel [Bondy <fc Schloss, attorneys], for the respondent Schloss.
    
      Joseph Harvis, respondent, in person.
   Per Curiam.

The failure of plaintiff to specify the matters as to which an examination before trial of defendants-respondents is sought warranted a denial of the motion. (Bamberger v. Cooke, 181 App. Div. 805.) We think, however, that the denial of the application should have been without prejudice to a renewal thereof.

The objections interposed by plaintiff to the account of respondents as filed raised issues for trial before the learned referee. Plaintiff is entitled to examine as to some of the matters. Thus, plaintiff should be permitted to inquire as to the claim that in making investments in mortgage participating certificates, one or both of respondents received sums of money from the sellers of such certificates. There may be other items which are proper. Upon such examination respondents may be required to produce relevant books and records. (Civ. Prac. Act, § 296.)

In setting forth the items of examination plaintiff should specify statements of fact upon which respondents are sought to be examined and not the conclusions of law which are contained in the formal objections to their account.

The order should be modified by providing that the denial of the motion is without prejudice to a renewal thereof upon proper papers, and, as so modified, affirmed, without costs.

Present — O’Malley, Townley, Dore, Cohn and Callahan, JJ.; O’Malley and Townley, JJ., dissent in so far as leave to renew is granted.

Order modified by providing that the denial of the motion is without prejudice to a renewal thereof upon proper papers, and, as so modified, affirmed, without costs.  