Majority
Memorandum: The complaint in the second cause of action alleges that the defendants, including defendant Maloy, conspired to defraud the plaintiff. Maloy’s answer is a general denial. The complaint has not been attacked. The matters sought to be elicited upon an examination before trial of Maloy, as an adverse party, are material and necessary in the prosecution of the action. We are of opinion that the plaintiff is entitled to examine the defendant, Maloy, as to the matters set forth in the notice of motion and is entitled to the production of the papers therein demanded. All concur. (Appeal from an order, as resettled by a subsequent order, denying plaintiff’s motion to examine defendant Maloy before trial.) Present — Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ.