Present — Sears, P.J., Taylor, Edgcomb, Thompson and Crosby, JJ.
The order appealed from is reversed and the motion of the defendant to vacate the plaintiff's notice to take testimony of defendant by deposition before trial, dated November 28, 1928, is granted in the following particulars only, without costs of this appeal to either party: Paragraph numbered 1 is struck out. Paragraph numbered 4 in the notice is amended by striking out the following words: "Circumstances attending, and the nature, and whether public or private, of the sale of such securities and collateral pledged by plaintiff with defendant." Paragraph numbered 7 is amended by striking therefrom the word "prove" and by inserting in lieu thereof the word "identify." Paragraph numbered 8 in said notice is struck out. In all other respects the motion is denied. The date for the examination is fixed for the 6th day of April, 1929, at the place and hour named in said notice. Paragraph numbered 9 in the notice to take the deposition of the defendant before trial, requiring the production of books and papers for the purpose of refreshing the recollection of the witness, is retained, although without the accompanying subpoena duces tecum it would be of no effect. If the production of documents had been for the purpose of inspection or discovery, an order requiring such production would have been requisite. The following cases are reconcilable if this distinction is kept in mind. (Civ. Prac. Act, § 296.) In the case last hereunder cited the notice was treated as seeking an inspection and discovery of books and papers; the opinion is in error in the statement that the subpoena duces tecum had been vacated by the order from which the appeal was taken. ( Ritzwoller v. Lurie, 204 App. Div. 768; New York City Car A. Co. v. Regensburg Sons, Inc., 205 id. 705; Klapp v. Merwin, 122 Misc. 708; Citizens Trust Co. v. Prescott Son, Inc., No. 1, 221 App. Div. 420.) All concur.