Opinion
March, 1897.
Nadal Smyth, Carrere Trafford, for appellant.
Fromme Brothers, for respondent.
This is an appeal from an order denying further physical examination of the plaintiff by a female physician.
The constitutionality of the act has been settled (Lyon v. Man. R. Co., 142 N.Y. 298, 306), and in order to meet the objection of Mr. Justice Gray, in the Supreme Court of the United States, in the case of Union Pacific Railway Co. v. Botsford, 141 U.S. 250, in which he says: "To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault and a trespass," it has been provided that where the party is a female, she shall be entitled to have such examination before physicians or surgeons of her own sex. § 873 of the Code of Civ. Pro.
I cannot and do not agree with the respondent's counsel that in such an examination he has the right to bring whom he pleases of the male sex to witness his client (a female) strip and expose herself.
There is no such law, and besides the female client, there may be present the female physician appointed by the court and a female physician to present the interest of each of the parties in litigation and such other females as the plaintiff may desire.
The law never intended that the attorney or any male should appear or take part in any such physical examination. He may be present, however, at the oral examination of the physician thereafter.
The physician appointed is an officer of the court and subject to directions of the same and to its orders, and should be sworn.
The only other question to consider is, was the order appealed from discretionary, and was it properly exercised, and we are satisfied that it was.
From a careful examination of the testimony of the physician, we think it was sufficient to meet the requirements of the order for the examination.
The order appealed from is, therefore, affirmed, with costs.
FITZSIMONS and CONLAN, JJ., concur.
Order affirmed, with costs.