
    In the Matter of the Application of Joseph Besch, Respondent, for the Examination of Witnesses in an Expected Action. Horatio M. Pollock, Appellant.
    
      Matter of Beach, 139 App. Div. 922, appeal dismissed.
    (Argued April 25, 1911;
    decided May 9, 1911.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 26, 1910, which affirmed an order of Special Term denying a motion to vacate an order for the examination of the appellant herein as an expected party to an action.
    
      Andrew J. Nellis and Walter E. Ward for appellant.
    
      J. S. Erost for respondent.
   While we are of the opinion that the order sought to he reviewed was made without authority, we are also of the opinion that it is not a final order in a special proceeding and subject to appeal to this court, hut that its validity may be tested by the appellant when any attempt is made to punish him for failing to comply with the order. (Matter of Strong v. Randall, 177 N. Y. 400.) The appeal, therefore, is dismissed, but, under the circumstances, without costs; no opinion.

Concur: Cullen, Ch. J., Vann, Werner, Hiscock and Collin, JJ.; Haight, J., concurs only in the dismissal of the appeal. Absent: Gray, J.  