Smith v. New Jersey & Hudson River Railway & Ferry Co.

Majority

p. 493

Grace L. Smith, by George D. Smith, Her Guardian ad Litem, Respondent, v. New Jersey and Hudson River Railway and Ferry Company, Appellant.

First Department,

January 24, 1908.

Headnote

Physical examination before trial — refusal to obey order — striking out . complaint.

A plaintiff who persists in a refusal to submit to a physical examination ordered by the court will not be allowed to prosecute the action, and the complaint should he ordered stricken out unless the plaintiff within twenty days after service of the order submits to an examination.

Appeal by the defendant, the New Jersey and Hudson Elver Eailway and Ferry Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8tli day of Hovember, 1907, as denies the defendant’s motion to punish the plaintiff for contempt of court .and to dismiss this action.

Clarence E. Thornall, for the appellant.

Thomas C. McDonald, for the respondent.

The plaintiff should not be allowed to prosecute her action if she persists in her refusal to submit to the examination authorized by the Code of Civil Procedure^[1] and ordered by the court. Hor should the action be kept alive indefinitely. The defendant is entitled to have it promptly and finally disposed of. The order appealed from will be modified so as to provide that the complaint be stricken out unless the plaintiff shall within twenty days after the service of the order upon her attorney, and upon due notice to the attorney for the defendant submit herself to a further and thorough, physical examination by the physician heretofore appointed, with ten dollars costs and disbursements to appellant.

Present — Patterson, P. J., Ingraham, Clarke, Houghton and Scott, J J.

Order modified as directed in opinion, with ten dollars costs and disbursements to appellant. Settle order on notice.

* See § 873.—[Rep.