Moses v. Newburgh Electric Railway Co. — 72 N.Y. St. Rep. 50

Majority

p. 50

Emily Moses, App’lt, v. Newburgh Electric Railway Company, Resp’t,

(Supreme Court, General Term, Second Department,

Filed December 2, 1895.)

Headnote

1. Deposition—Physical examination of plaintiff.

Where, in an action to recover damages for personal injuries, the moving affidavit states, that defendant is ignorant of the nature and extent of plaintiff’s injuries, which is not contradicted, it makes a good cause for allowing the physical examination of plaintiff before trial.

2. Same—Affidavit.

The affidavit for such examination need not allege that the defendant intends to use the information on trial.

Appeal from an order directing that plaintiff submit to a phyiscal examination.

Guggenheimer, Untermyer & Marshall, for app’lt ; William D. Dickey, for resp’t.

—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-make use of the examination upon the tfial 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.