Opinion
November, 1935.
This is an appeal from an order of the court at Special Term denying appellant's motion to vacate an order for his examination in accordance with section 295 of the Civil Practice Act. On March 1, 1935, respondent, an infant eight years of age, was taken to St. Elizabeth's Hospital in Utica for an operation for appendicitis which was performed by appellant. While a patient in the hospital and while under appellant's care respondent received burns which resulted in keloid scars on his left leg. His parents were unable to ascertain how the child sustained the injuries. One of respondent's attorneys communicated with appellant in an endeavor to learn how respondent was injured in order to commence an action for damages. Appellant declined to respond to the letter of inquiry. Thereupon an application was made to a justice of the Supreme Court for an order to examine appellant. The order was granted. The order under review refused to vacate such order. Order unanimously affirmed, with fifty dollars costs and disbursements. Appellant is directed to appear before the referee named in the order of Mr. Justice Davis, dated August 2, 1935, and at the place therein designated, on December 2, 1935, at two o'clock in the afternoon. Respondent shall serve a copy of the order to be entered hereon, with notice of entry thereof, on appellant at least two days prior to the date herein fixed for the examination.
Present — Hill, P.J., Rhodes McNamee, Bliss and Heffernan, JJ.