Defendant’s answer does not admit the making of the contract alleged in the complaint. The matters specified in paragraphs 1 to 3 (inclusive) of the notice for examination, are not shown to be “ material and necessary in' the prosecution * * * of the action ” by plaintiff. (Civ. Prac. Act, § 288.) As to paragraphs 4 to 6 (inclusive), the contrary is the case. To sustain *111the notice as to the matters specified in paragraphs 7 to 10 (inclusive) thereof would merely enable the plaintiff to examine or cross-examine defendant as to his defenses and counterclaims. We find nothing in this record to justify our departing from the general rule forbidding such examination. (Sands v. Comerford, 211 App. Div. 406; Lattimer v. Sun-Herald Corp., 208 id. 503.)
The order appealed from should be modified so as to provide for striking from the notice for examination paragraphs 1, 2, 3, 7, 8, 9 and 10 only, and as thus modified affirmed, without costs. The notice, as amended, to specify time and place of examination and to name referee.
Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.
Order modified in accordance with opinion and as modified affirmed, without costs of this appeal to either party.