Though there may be doubt as to the sufficiency of the complaint, it is not frivolous, and upon this motion we have no right to pass otherwise upon its sufficiency. Ryan v. Reagan, 46 App. Div. 590, 62 N. Y. Supp. 39. The defendants can upon examination raise the objection that the answer to any particular question will tend to incriminate them, but such objection is, at the present time, premature. Whether any books, papers, etc., will be necessary to refresh the witness’ recollection, and, if so, what papers, can be determined only at the examination, and their production can then be procured by subpoena, and the provision for their production in the order is improper.
*425Order modified, by striking therefrom the provision requiring the production of books, papers, etc., and, as modified, affirmed, without costs of this appeal to either party, but with disbursements to the appellant.