120 Misc. 839 | N.Y. Sup. Ct. | 1923
The defendant has applied to the court ex parte for an order for the physical examination of the plaintiff and also for the taking of testimony of the plaintiff by deposition respecting the nature and extent of her injuries. Prior to the Civil Practice Act such orders were ordinarily obtained without notice to the party to be examined, but in my opinion the Civil Practice Act now requires that such orders shall be granted only upon notice. Section 306 is part of article 29 entitled “ Testimony by deposition.” It provides expressly that “ the order for such physical examination upon the application of the defendant may also direct that the testimony of such party be taken by deposition pursuant to this article,” and even without this provision it was held under the old Code provision that an order for physical examination can be granted only as part of an examination of plaintiff as a witness before trial. Lyon v. Manhattan Ry. Co., 142 N. Y. 298. It is evident, therefore, that the order asked for in this case can be granted only pursuant to the provisions of the Civil Practice Act in regard to taking testimony by deposition before trial. Section 292 of the Civil Practice Act provides that “ a party entitled "to take testimony by deposition may obtain an order of the court
Ordered accordingly.
