De La Gandara v. Pynchon , 294 N.Y.S. 830 ( 1937 )

Per Curiam.

The order permitting an examination of the plaintiff must be modified.

The matters relating to bankruptcy and the composition payment are facts admitted by the pleadings and are matters of public record in litigation to which defendants’ firm was a party in the bankruptcy court for the Southern District of New York except as to their legal effect as to which the plaintiff may not be examined. Accordingly items 9 to 16 were improperly allowed and should be stricken from the order. The remaining items are allowed.

The stay, however, should be stricken out as premature. If plaintiff fails to comply with the order as modified, application for a stay may then properly be made.

In view of the special facts and circumstances disclosed, if plaintiff elects within fifteen days of the date of the decision herein, the items allowed may be taken by open commission at plaintiff’s expense, the fair and reasonable amount of such expense to be determined on an application to the Special Term after notice of plaintiff’s election.

The order so far as appealed from should be modified accordingly and as so modified affirmed, without costs.

Present — Martin, P. J., O’Malley, Untermyer, Dore and Cohn, JJ.

Order, so far as appealed from, unanimously modified as indicated in opinion, and as so modified affirmed, without costs. The date for the examination to proceed to be fixed in the order. Settle order on notice.