Opinion
September, 1907.
Feltenstein Rosenstein, for plaintiff.
Beatty Burlingame, for defendants.
This is a motion to vacate and set aside an order made for the examination of the plaintiff as an adverse party under sections 870, 872 and 873 of the Code. The order directs the plaintiff to appear for examination before a referee and also directs a physical examination by a physician, and further directs the examination of the physician before the referee as to the result of his examination. In so far as the order directs or permits the examination of the physician it is clearly unwarranted. I can find no provision of law which permits it. The section of the Code (873), contemplates a physical examination of the party by the physician which includes such oral examination as the physician thinks proper, and of the questions and answers the referee can make a record, but the physician cannot be examined himself as to the result until the trial. This conclusion I believe to be amply supported by the opinions of the court in Lyon v. Manhattan R. Co., 142 N.Y. 298; Matter of Davies, 168 id. 108; Potter v. Village of Hammondsport, 112 A.D. 91. The order is modified so as to strike out the provision for the examination of the physician. Settle order on notice.