204 Misc. 203 | N.Y. App. Term. | 1953
Buie 121-a of the Buies of Civil Practice was not intended to change the rule prevailing in this department that general examinations before trial will, in the absence of special circumstances, not be permitted in matrimonial actions, actions for assault, and actions for other willful torts. The wording of the short form of notice of examination authorized by the rule indicates that the rule was intended to authorize examinations in negligence cases. The first sentence of the rule was intended only to eliminate the burden of proof rule, regardless of the nature of the action, but not to authorize general examinations before trial in all actions. These views are confirmed by the decisions of the Appellate Division of this department in Tausik v. Tausik (280 App. Div. 887), and Field v. Field (281 App. Div. 657), decided after the effective date of the rule, in which the Appellate Division in this department held that general examinations before trial in matrimonial actions will not be permitted as a matter of policy in the absence of special circumstances.
The order should be reversed, with $10 costs and disbursements, and motion granted. .
Hammer, Hofstadter and Sohreiber, JJ., concur.
Order reversed, etc.
