Opinion
October 26, 1964
In a negligence action by an infant to recover damages for personal injury, and by his father to recover damages for loss of services, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated June 24, 1964, as directed the infant plaintiff to submit to a pretrial examination at Special Term, Part II of the court. Order modified: (1) by striking out its second decretal paragraph, directing that the infant appear for pretrial examination at Special Term, Part II of said court; and (2) by substituting therefor a paragraph directing the infant to appear before the Justice presiding at Special Term, Part II, of the Supreme Court, Kings County, on a date and hour to be specified by the defendant upon 10 days' written notice to the plaintiffs or at such other time as the parties may mutually agree in writing; and providing that, if the Justice presiding shall determine by a preliminary examination that the infant has sufficient capacity and is competent to testify, the infant shall be examined with respect to the matters specified in defendant's notice of examination, under the supervision of the Justice presiding. As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to plaintiffs. Since defendant is entitled to an examination of the infant if the infant be found by the court to be qualified to testify, we are of the opinion that the infant is entitled to the protection of the court in the conduct of the examination and in the determination of the preliminary issue as to his competency to be a witness ( Blagburn v. Milrita Realty Corp., 204 Misc. 74; Lester v. Fischbein, 8 A.D.2d 618). Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.