Allegra v. De Nobili Cigar Co.

Order in so far as appealed from by defendant modified by allowing the examination as specified in the notice for the taking of such examination, and as so modified affirmed, without costs. Order in so far as appealed from by the plaintiff affirmed, without costs. The examination will proceed on five days’ notice. In granting this examination as requested we do not pass upon the materiality, relevancy or competency of any questions that may be asked of the plaintiff. We leave that situation to be dealt with at the trial. We do determine that in the light of the character of the action and plaintiff’s first publication, which apparently inspired the defendant’s publication complained of, together with the allegations in the pleadings, the general examination here sought should be permitted. We do not agree with plaintiff that the Special Term failed to dispose of his motion to vacate the subpoena duces tecum. The order denied plaintiff’s motion “ except as herein granted.” And we think that the disposition of that part of the motion was correct. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.