Opinion
For omitted decision of October 20, see post, p. 1038. — [REP.
In an action to recover damages for breach of an alleged employment contract, defendant appeals from that part of an order which denies certain items of an examination of plaintiff before trial. Order, insofar as appealed from, affirmed, with $10 costs and disbursements, the examination to proceed on five days' notice. While the court in its discretion may permit the examination of a party before trial, even where the burden of proof is entirely with that party ( Public National Bank v. National City Bank, 261 N.Y. 316), the denial by Special Term was proper as defendant failed to show that the matters in question were material and necessary to the prosecution or defense of the action. (Civ. Prac. Act, § 288.) Lewis, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.