
    Tichnor Brothers, Inc., Appellant, v. Harry A. Bickle, Respondent.
    Fourth Department,
    March 10, 1926.
    Depositions — examination of defendant before trial — notice vacated as to certain questions.
    Notice of examination of the defendant before trial is vacated as to certain questions on the ground that they are not material and necessary for the prosecution of the action and as to other matters specified on the ground that the examination would merely enable the plaintiff to examine or cross-examine the defendant as to his defenses and counterclaims.
    Appeal by the plaintiff, Tichnor Brothers, Inc., from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Orleans on the 24th day of December, 1924, granting defendant’s motion to vacate a notice for an examination of the defendant before trial.
    
      Gurdon W. Fitch [Sanford T. Church of counsel], for the appellant.
    
      L’Hommedieu & Whedon [Milt’on J. Whedon of counsel], for the respondent.
   Per Curiam.

Defendant’s answer does not admit the making of the contract alleged in the complaint. The matters specified in paragraphs 1 to 3 (inclusive) of the notice for examination, are not shown to be material and necessary in' the prosecution * * * of the action ” by plaintiff. (Civ. Prac. Act, § 288.) As to paragraphs 4 to 6 (inclusive), the contrary is the case. To sustain the notice as to the matters specified in paragraphs 7 to 10 (inclusive) thereof would merely enable the plaintiff to examine or cross-examine defendant as to his defenses and counterclaims. We find nothing in this record to justify our departing from the general rule forbidding such examination. (Sands v. Comerford, 211 App. Div. 406; Lattimer v. Sun-Herald Corp., 208 id. 503.)

The order appealed from should be modified so as to provide for striking from the notice for examination paragraphs 1, 2, 3, 7, 8, 9 and 10 only, and as thus modified affirmed, without costs. The notice, as amended, to specify time and place of examination and to name referee.

Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Order modified in accordance with opinion and as modified affirmed, without costs of this appeal to either party.  