Lord Construction Company, Respondent, v. Edison Portland Cement Company, Appellant

Lord Construction Company, Respondent, v. Edison Portland Cement Company, Appellant. Appeal from an order of the Supreme Court, entered in the New York county clerk’s office August 29, 1919, denying the defendant’s motion to vacate an order for examination of defendant before trial, and also from the order for examination. [MAJORITY — Philbin, J.:] Philbin, J.: The order for examination is entirely too sweeping. The plaintiff is entitled to examine only as to the allegations of the complaint as limited by the bill of particulars. Moreover, the affidavit upon which the order for examination was obtained fails to set forth the facts required by subdivision 1 of section 872 of the Code. of Civil Procedure. The order denying the motion to vacate should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs. Clarke, P. J., Dowling, Page and Merrell, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Motion to dismiss appeal from order of August 27, 1919, granted, with ten dollars costs.