| N.Y. App. Div. | Dec 15, 1929
Order modified by substituting Charles L. Harold for Matthew S. Sloan as the person to be examined, and by striking from the notice of examination paragraphs numbered 1, 2, 3, 9, 11, 12, 13, 19, 20, 21, 22 and 29, and as so modified affirmed, without costs. Examination to proceed on five days’ notice at same place and hour. It appears affirmatively that Mr. Harold, defendant’s general sales agent, is conversant with the matters concerning which plaintiff seeks to examine the defendant, having negotiated the contract here involved, and that Mr. Sloan, defendant’s president, has no information regarding the matters. The rule and burden of proof are the same where a notice of examina|tion is challenged by a motion to vacate or modify as it is upon an application for an order under section 292 of the Civil Practice Act, by which it would havo been necessary for the plaintiff, under rule 122 of the Rules of Civil Practice, to present proof by affidavit that Mr. Sloan’s testimony is material and necessary. We are further of opinion that the testimony of the defendant respecting the matters enumerated in the paragraphs of the notice stricken out are not material and necessary to the prosecution of the action. Lazansky, P. J., Young, Hagarty and Scudder, JJ., concur.; Carswell, J., concurs in result.