Lawrence v. Samuels

This is an action to recover damages for injuries sustained by plaintiff by falling down a stairway of a house owned by defendant, and which stairway he negligently maintained. Defendant obtained an ex parte order for plaintiff’s examination before trial as. an adverse party, and that at the same, time, before the same referee, she submit to a physical examination by a physician named in the order. The plaintiff moved at Special Term to vacate this order upon the papers upon which it was granted, upon the ground that they were insufficient to authorize the granting of same, and her motion was denied. This appeal is from the order denying motion to vacate, and appellant’s first contention here is that the papers were insufficient to sustain the order, but .the affidavit of defendant complies with the provision oi the Code.

The appellant’s counsel, by his brief, further contends that the order " permits no person to be present except the referee, the physician and the plaintiff, and, perhaps, by implication, the defendant’s attorney; ” but this is not so, for the order does not provide that any one shall he excluded from the hearing.

The appellant further complains that the order " compels her to submit to an examination by a physician not of her own sex.” Although this is true, and the Code says that she is entitled, to have the examination before a physician of her own sex, yet the *502record does not show that she made any effort to have the order modified so as to provide for her examination by a physician of her Own sex, or to have it modified in any respect, and does show that she simply sought to have it vacated on the ground that the papers upon which it was granted were insufficient. It must be assumed that if she had requested a female instead of a male physician to have been substituted, that the court would have granted1 her request, and upon her request might have otherwise modified the order. The order appealed from is affirmed, with $10 costs, with leave to plaintiff to apply at Special Term for a modification Of the original order as she may be advised.

McCarthy, J., concurs. ,

■’Order, affirmed, with costs,, with leave to apply for-a modification.