
    In the Matter of Harry L. Alpert, Appellant. District Attorney of Oswego County, Respondent.
    Argued February 9, 1965;
    decided March 18, 1965.
    
      
      John E. Shaffer and Joseph A. Volotta for appellant.
    
      John R. Murray, District Attorney, for respondent.
   Memorandum: The order of the Appellate Division dismissing the appeal from the order of Special Term denying the motion of petitioner should be modified by affirming so much thereof as dismisses the appeal relating to the examination of Lenore Marie Custodero and reversing so much thereof as dismisses the appeal relating to the examination of Ann “ Doe ”. As to the former a criminal proceeding was pending before the Magistrate in which petitioner was charged with abortion at the time the motion to examine her was made at Special Term and no separate appeal lies from such an order which may be reviewed only on appeal from the final judgment (Code Crim. Pro., § 517). As to the examination sought of Ann “ Doe ”, no criminal proceeding was pending concerning her, and that application is in a special proceeding (CPLR 401-411). This application was entertained and decided on the merits by the Special Term and the Appellate Division has jurisdiction to review it. We pass only on the question of appellate jurisdiction and do not reach or consider the merits.

Van Voorhis, J. (dissenting in part).

I concur insofar as the order of this court applies to the examination sought of Ann “ Doe ” but dissent from the dismissal with respect to the examination of Lenore Marie Custodero and vote to reverse the portion of the, order appealed from which relates to her also and to make the same disposition with regard to her as is being made with regard to Ann “ Doe ”.

Chief Judge Desmond and Judges Dye, Fuld, Burke, Scileppi and Bergan concur in Memorandum; Judge Van Voobhis dissents in part in a separate memorandum.

Order modified, in accordance with the memorandum herein, and, as so modified, affirmed, without costs.  