Order, entered on October 9, 1964, insofar as it denied that portion of defendant's motion which sought a protective order vacating the plaintiff's notice of examination before trial, unanimously reversed, on the law and in the exercise of discretion, with $30 costs and disbursements to appellant, and motion for a protective order granted, with $10 costs. Special Term, having precluded plaintiff — albeit conditionally — from offering evidence at the trial with respect to the items set forth in the defendant's demand for a bill of particulars, should have granted the order of protection. By reason of the proscription of the preclusion order the plaintiff, in effect, was disabled from proving the cause of action alleged in his complaint. In the circumstances there was no need for an examination before trial to elicit facts which, in the posture of the case as then presented, could not be proven at the trial. Of course, if the plaintiff does, or has complied with the condition of the preclusion order he may thereupon, if so advised, serve a de novo notice for examination. Appeal from order entered on November 16, 1964 unanimously dismissed, as academic, without costs and without disbursements.
Concur — Botein, P.J., Rabin, Valente, Eager and Bastow, JJ.