Majority
p. 674Isidore Schimmel, Individually and as a Member of Waiters and Waitresses Union, Local No. 2, an Unincorporated Association, et al., Appellants, v. Nat Messing et al., Respondents.
In an action for an accounting, plaintiff Schimmel appeals from so much of an order which denied him the right to examine defendants before trial as to certain items. Order modified on the law by striking out the second ordering paragraph and substituting therefor the following: “ Ordered that the motion be and the same is hereby granted as to items ‘C’, ‘D’ and ‘H’ set forth in said affidavit. Such examination as to those items, however, shall not include inquiry as to the amounts deposited
p. 675
or withdrawn from the bank account.” As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to appellants. The examination shall proceed on five days’ notice. Inquiry as to the matters stated in items “ C ”, “ D ”■ and “ H ” may establish conversion of the funds of the union and justify a decree directing an accounting. Carswell, Acting P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur. [See post, p. 769.]