Majority
— In an action for breach of contract, and for money had and received by defendant, plaintiff appeals from an order which denies a motion for examination of the defendant before trial. Order reversed on the law, without costs, and motion granted, without costs, to the extent of directing an examination of defendant as to the matters included in items 5 and 6 as set forth in the notice of motion, and further directing the production on such examination of the books and records referred to in such notice of motion, pursuant, to section 296 of the Civil Practice Act. The examination shall proceed on five days’ notice. In our opinion, it was an improvident exercise of discretion to deny the examination sought with respect to the second cause of action, the allegations of which are denied in the answer. Rolan, P. J., Carswell, Johnston, Adel and Schmidt, JJ., concur.