(dissenting). The items upon which defendant seeks to examine plaintiff all have to do with defendant’s own conduct, namely, as to whether defendant hired plaintiff and as to whether or not shipment of merchandise was made by defendant, a subject as to which the knowledge, information and records are exclusively within defendant’s control. Plaintiff, in a verified bill of particulars, has already supplied defendant with all necessary information including the names and addresses of the customers and, of course, can claim no others.
As the examination is not necessary (Civ. Prac. Act, § 288) and since defendant’s sole purpose is to cross-examine plaintiff in advance of trial, the Special Term properly exercised its discretion by denying the motion.
Accordingly, I dissent and vote to affirm.
Peck, P. J., Callahan, Van Voorhis and Heeeernan, JJ., concur in Per Curiam opinion; Cohn, J., dissents and votes to affirm, in opinion.
Order reversed, with $20 costs and printing disbursements and the motion granted. Settle order on notice. [See yost, p. 808.]