The plaintiff is entitled to an examination before trial. The court properly limited the examination to matters in issue and refused an examination with reference to matters admitted by the answer. The order allowed an examination of the records, but erroneously limited it for the purpose of refreshing the recollection of the witnesses. (Zeltner v. Fidelity & Deposit Co. of Maryland, 220 App. Div. 21.)
Because of the special circumstances shown in this case, the plaintiff is entitled to an examination of the Federated Engineers Development Corporation by John Hoffhine. (Chittenden v. San Domingo Improvement Co., 132 App. Div. 169.)
The order entered December 11, 1930, should be modified to the extent indicated, and as so modified affirmed, with ten dollars costs and disbursements to the appellant. The appeal from the order denying the motion for resettlement should be dismissed.
Present — Dowling, P. J., McAvoy, Maetin, O’Malley and Sheehan, JJ.
Order of December 11, 1930, modified as indicated in opinion and as so modified affirmed, with ten dollars costs and disbursements to the appellant. Appeal from order of December 19, 1930, dismissed. The date for the examination to proceed to be fixed in the order. Settle order on notice.