Order denying defendant's motion to vacate notice of examination reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The defendant has the affirmative upon the issues as to which the examination is sought, and plaintiff is not, therefore, entitled to the examination. ( Oshinsky v. Gumberg, 188 App. Div. 23; Zappas v. Horwill, 210 id. 861; Middleton v. Boardman, Id. 467, 860; appeal dismissed, 240 N.Y. 552.) Kelly, P.J., Rich, Jaycox, Young and Kapper, JJ., concur.