Order, entered on September 11, 1962, granting, in part, defendant's motion to vacate plaintiff's notice to examine defendant, and plaintiff's cross motion to examine defendant as a witness, unanimously modified, on the law and on the facts, to the extent of denying the motion, granting the cross motion and excising, as improper, the referral of the scope of the examination to Special Term, and, as so modified, affirmed, with $20 costs and disbursements to plaintiff-appellant-respondent. In the circumstances an examination of the defendant in his capacity as an adverse party and as a witness should be allowed. No prejudice can result therefrom and the examination sought is proper. Settle order on notice fixing date for examination to proceed.
Concur — Breitel, J.P., Rabin, McNally, Eager and Steuer, JJ.