I am of the view that the respondent in these filiation proceedings cannot be compelled to testify or produce evidence at the pretrial discovery stage of such proceedings.
Section 531 of the Family Court Act provides in pertinent part that: "The mother or the respondent shall be competent to testify but the respondent shall not be compelled to testify (Italics supplied.)
CPLR 3101, which is entitled "Scope of disclosure”, provides, in subdivision (b), as follows: "Privileged matter. Upon objection of a party privileged matter shall not be obtainable”.
Since matters which would be privileged at trial cannot be obtained by deposition (3A Weinstein-Korn-Miller, NY Civ Prac, par 3101.38, p 31-101), I would reverse, the order of the Family Court which granted petitioner’s motion for pretrial discovery.
I would not deny pretrial disclosure herein because of any rules pertaining to matrimonial cases, as alluded to in Matter of Arline W. v Robert D. (36 AD2d 455) cited in the majority memorandum. I base my denial solely on section 531. Similarly, the majority’s reliance upon Allen v Crowell-Collier Pub. Co. (21 NY2d 403) is misplaced. In the case at bar we are not dealing with the question of whether the information sought is "material and necessary” but, rather, with the question of privilege, namely: the privilege afforded by section 531.
In Dunlap v Dunlap (34 AD2d 889) although the court observed that "the reasons for restricting use of disclosure in matrimonial actions have been substantially diminished”, it nevertheless denied disclosure on the issue of adultery alleged in defendant’s counterclaim because he was not competent to testify on that issue. The court cited CPLR 4502, which states that a husband or wife is not competent to testify against the other in an action founded upon adultery. In the case at bar we are not faced with the competency of the testimony. Section 531 of the Family Court Act gives the respondent, in this type of action, complete protection against being compelled to give testimony.
*462Kupferman, Murphy and Lane, JJ., concur with Silver-man, J.; Capozzoli, J., dissents in an opinion.
Order, Family Court of the State of New York, New York County, entered on April 10, 1975, modified, in the exercise of discretion, so as to strike item "C” of petitioner’s interrogatories and so as to modify item "B” to exclude addresses, if any, at which respondent may have resided with petitioner, and otherwise affirmed, without costs and without disbursements.