Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. No answer has been served, and there is nothing in the record from which it can be determined what matters in the ease are to be litigated. The testimony sought to be obtained is not necessary to enable the defendant to answer. Until the issues are determined the court cannot say whether or not the testimony sought to be obtained is material and necessary, and under such circumstances no examination before trial can be had. (Welsh v. Cowles Shipyard Co., Inc., 200 App. Div. 724; Walczewski v. American Laundry Machinery Co., 236 id. 883; Noble v. Copake Pure Ice & Water [Corp., 129 Misc. 445.) All concur.