Order denying a preference pursuant to subdivision 5 of rule V of the New York County Supreme Court Trial Term Rules is modified on the law, on the facts and in the exercise of discretion, to grant leave to the plaintiff to make a new application for the same relief sought herein on new and additional medical proof, and, as modified, is otherwise affirmed, without costs. From the papers it appears that the last examination of the plaintiff by a medical expert occurred on June 6, 1957. It cannot, therefore, be determined whether the injuries claimed are permanent. If the plaintiff makes a new motion for a preference, a doctor’s affidavit based on a current examination and showing the nature and extent of the permanency claimed should be supplied, if that be the fact, for without such proof, the action does not warrant the preference sought. Concur — Breitel, J. P., Rabin, M. M. Frank, Stevens and Bastow, JJ.
Thomas v. Lenox 116 Inc.
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