Neis v. DeGregory

Order modified by striking from item 5 of the notice of examination the words “ whether he [defendant] failed, neglected or refused to account therefor to the plaintiff,” and the words “ and whether any part thereof has been paid,” and by striking therefrom item 7. As so modified, the order is affirmed, without costs. Examination to proceed on five days’ notice at same place and hour. While, in order to ascertain the amount of plaintiff’s interest in the real property, it will be necessary upon the trial to prove the amount of profits, it will not be a part of plaintiff’s case to prove that there was no accounting and that no amounts have been paid by defendant to plaintiff. No reason is disclosed for requiring an examination as to item 7. Lazansky, P. J., Rich, Young, Kapper and Carswell, JJ., concur.