279 A.D. 579 | N.Y. App. Div. | 1951
The action is for an annulment.
There are two causes of action set forth in the complaint: (1) for fraud based upon concealment of an incurable physical, mental and nervous disorder, and (2) for physical incapacity on the part of the husband.
We desire to note that in an action of this kind the court has inherent power to order such a mental or physical examination as might be necessary to ascertain the nature and extent of the alleged disability (Trovato v. Trovato, 262 App. Div. 276). Such examination might even be had during the progress of the trial so that the testimony of the examining medical expert may be received in aid of a proper decision. (Gore v. Gore, 103 App. Div. 168.)
For the foregoing reasons, the judgment should be reversed and a new trial ordered.
Glennon, J. P., Cohn, Van Voorhis and Shientag, JJ., concur; Dore, J., dissents and votes to affirm.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.