Moses v. Newburgh Electric Railway Co. — 36 N.Y.S. 149

Majority

p. 149

MOSES v. NEWBURGH ELECTRIC RY. CO.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Headnote

Damages—Physical Examination of Plaintiff—Affidavit.

An affidavit for the physical examination of plaintiff in an action impersonal injuries need not allege that defendant intends to use on the trial the information to be gained.

Appeal from special term, Orange county.

Action by Emily Moses against the Newburgh Electric Railway Company for personal injuries. From an order directing that plaintiff submit to a physical examination, she appeals.

Affirmed.

Argued before DYKMAN and PRATT, JJ.

G-uggenheimer, Untermyer & Marshall, for appellant.

William D. Dickey, for respondent.

The action is to recover damages for personal injuries, and the moving affidavit states that defendant is ignorant of the nature and extent of plaintiff’s injuries. That is not contradicted, and it makes a good cause for allowing the examination. The objection that there is no allegation that defendant intends to malee use of the examination upon the trial is frivolous. Obviously, a party cannot have any intelligent purpose as to whether he will use testimony until he knows what it is to be. If it proves favorable to the party by whom it is taken, it will ordinarily be read by that party; if unfavorable, it will ordinarily be read by the other party. In the present case, if, on the trial, the plaintiff’s witnesses testify to the same facts that this examination discloses, there will be no need to produce it.

Order appealed from affirmed, with $10 costs and disbursements.