Opinion
July 11, 1951.
Present — Taylor, P.J., McCurn, Kimball, Piper and Wheeler, JJ.
Order modified on the law by striking therefrom all of paragraph 2 and all of paragraph 4, except the items (5) and (6) under (c), and as so modified affirmed, without costs of this appeal to either party. Memorandum: The complaint alleges a cause of action for waste. In such an action he cannot recover damages for loss of reputation of his theatre building, loss of goodwill or other intangibles. It follows that he may not, in this action, examine defendant as to items which concern only matters for which no damages may be recovered in his action for waste, for those items are not "material and necessary in the prosecution" of the action. (Civ. Prac. Act, § 288.) We pass upon no question as to plaintiff's claims against defendant under the lease or any other agreement not before us. All concur. (Appeal from an order granting plaintiff's motion for an examination before trial.)