282 A.D. 851 | N.Y. App. Div. | 1953
Order insofar as appealed from modified on the law and facts in accordance with the memorandum and as modified affirmed, with $10 costs and disbursements to the defendant-appellant. Memorandum: The order directs the physical examination of the plaintiff in an action for personal injuries. The order, however, provides as a condition for such examination that the defendant be limited to the use of only one physician upon the trial. After the accident and before the action was commenced, the plaintiff was examined by a physician on behalf of the defendant. Section 306 of the Civil Practice Act provides for a physical examination of the plaintiff “In an action to recover damages for personal injuries”. The examination had before the action was commenced was not an examination “In the action” provided for by section 306. (Cronin v. Anderson, 226 App. Div. 691.) Moreover, the defendant did not have plaintiff’s bill of particulars of his alleged injuries until over a year had passed since the accident and the defendant is entitled, as the order provides, to an exam