107 Misc. 571 | New York County Courts | 1919
Plaintiff moves to vacate an order for her physical examination before trial in a negligence action because the order provides, without warrant of law, “ that the report of the physician be given to counsel for the defendant.”
The application for the examination in question was made under section 873 of the Code of Civil Procedure. It has always seemed to me that this section conferred upon the court extraordinary powers, very closely trespassing “ on the sacred right of the individual to be let alone — inviolability of the person,” this phrase being that of Pound, J., in the case of Misak v. Carborundum Co., 75 Misc. Rep. 205. For twenty years plaintiffs in negligence cases have been required,
In a case of this ldnd the referee appointed in the order takes the evidence of the plaintiff—not of the doctor — and in the case of Wood v. Hoffman, 56 Misc. Rep. 66; affd., 121 App. Div. 636, Mr. Justice Brady said: “The section of the Code (873) contemplates a physical examination of the party by the physicián which includes such oral examination as the physician thinks proper, and of the questions and answers the referee can make a record, but the physician cannot be examined himself as to the result until the trial. ’ ’
I believe this provision to be beneficial and one calculated to clarify situations arising in occasions of this ldnd, but there should be no elements of the “ star chamber ” methods permitted to attach themselves to such a proceeding. • This very question I find has been passed upon by one of my learned associates in this court in the case of Herbert v. B. H. R. R. Co., and I concur in his conclusion.
I, therefore, conclude to vacate the order for the physical examination of the plaintiff before trial, with ten dollars costs, and with leave to renew in accordance with the above opinion.
Ordered accordingly.