
    Ella E. Gore, Respondent, v. Franklin P. Gore, Appellant.
    
      Action to annul a marriage because of the husband's impotency — the court may compel him to submit to a surgical examination—proper form of procedure — evidence, how taken.
    
    In an action brought by a wife to annul her marriage, on the ground of her husband’s physical incapacity, 'the court has power to grant an order requiring the husband to submit to a surgical examination as to the matters alleged in the complaint.
    There being no fixed and definite procedure laid down by the court or by any statute to control the examination, the method to be adopted must rest largely in the judicial discretion of the Special Term.
    In the absence of peculiar and unusual features, the examination and the evidence of the examining surgeons should not be taken before a referee prior to the trial, but should be taken before the court during the progress of the trial.
    Appeal by the defendant, Franklin P. Gore, from an order of the Supreme Court, made at the St. Lawrence Special Term, and entered in the office of the clerk of the county of St. Lawrence on the 16th day of June, 1904, directing a physical examination, of the defendant, and also from a supplemental order, entered in said clerk’s office on the 5th day of July, 1904, changing the date named in the first above-mentioned order for such examination.
    The action is brought by the wife to annul her marriage to defendant on the ground of his physical incapacity and impotency. The husband answers, admitting that the parties were married on April 15, 1903, and denying all the other charges in the complaint. The plaintiff thereupon, on her affidavit verified May 14, 1904, to the effect that it is necessary that she should have a physical examination of the defendant, showing his past and present physical condition, in order to prepare for the trial and to properly conduct the same; and on the affidavit of her attorney, verified May 16, 1904, to a similar effect, and on the pleadings in the action, procured an order upon notice to the defendant’s attorneys at a Special Term of this court, requiring the defendant to appear before a referee named, at a time and place fixed therein, and submit to a surgical examination as to the matters contained in said complaint. Such examination to be conducted by two physicians and surgeons therein named and residing in the city of Ogdensburg, M. T. The order further provides as follows : “ That said physical examination.be limited to the physical condition of the said defendant previous to the commencement of this action and during all of the lifetime of said defendant and the physical condition of said defendant at the time of said marriage and ever since and at the present time, and, for the purpose of assisting said physicians in said examination, said defendant, Eranklin P. Gore, may be examined and his deposition taken as to the facts, duration' and extent of his said physical disability, and that the depositions of said physicians be taken by said referee as to the facts found and ascertained by them upon such physical examination with their opinions as to the physical capacity of said defendant to have sexual intercourse and enter into the marriage relation with their opinion therefor.”
    
      Arthur W. Orvis, for the appellant.
    
      Daniel W. Mulligan, for the respondent.
   Parker, P. J.:

The objection which the defendant most earnestly takes to this order is, that the court has no authority to grant one requiring a physical examination of the defendant. In my opinion such objection is not well taken. The old Court of Chancery never refused, that I can discover, to exercise sueli authority. On the contrary, it would never grant a decree annulling a marriage on that ground until such an examination had been had by competent and disinterested surgeons, named or approved by the court, and such an examination would be directed and the defendant ordered to submit thereto upon the court’s own motion, in the event that neither party applied, upon the ground that public policy required such proof of such a charge, in order to warrant a dissolution of the marriage contract on that ground. Any less efficient proof was clearly so liable to collusion that it was deemed insufficient and unsatisfactory. (Devanbagh v. Devanbagh, 5 Paige, 554; Newell v. Newell, 9 id. 25 ; Cahn v. Cahn, 21 Misc. Rep. 506 ; Anonymous, 34 id. 109.)

There is no ground, therefore, for the reversal of this order because the court has assumed to require the defendant to submit to a .physical examination.

It is urged upon us, however, by the appellant that the rights of the defendant have not been sufficiently protected by this order, and that it contains some provisions that must necessarily operate to his prejudice.

Rone of the provisions of the Oode of Civil Procedure apply to such a jiroceeding as this, and none of the requirements of the order appealed from are warranted by that act. Reither is there, any fixed and definite procedure laid down by the court or by any statute to control such proceedings, and,' therefore, the method to be adopted must rest largely in the judicial discretion of the court at Special Term.

The defendant complains in this case that the order leaves the proceeding, so far as his oral examination is concerned, wide open, and permits the plaintiff to inquire as to any subject which may be deemed pertinent to any issue raised in the action, and that it also requires the examining physicians to be sworn before the referee and to give their' evidence and opinions upon the issues presented.

Evidently the order seems to contemplate that the deposition of both defendant and the physicians is to be talcen before the referee, but it makes no- provision as to how the record thereof is to be taken or used, nor as to what effect it is to have upon the trial. May it be used upon the trial only in the absence of the defendant or physicians so examined % Or are they to be excluded from the presence of the court and the deposition so taken substituted as their evidence, or under what circumstances and in what manner is it to be used ? It must be remembered that there is no general provision of practice which is applicable to or controlling in such cases. The authority to take such examination and evidence does not go as a matter of course, nor is the procedure to be followed in taking it controlled by the usual rules.

The order before us should not leave such matters in doubt, nor should it, in my judgment, direct that the deposition of the physicians to betaken out of court and before trial. (Green v. Middlesex Valley R. R. Co., 31 App. Div. 412,417.) Indeed, I am of the opinion that no part of such an examination should in any instance, unless some peculiar and unusual features require it, be had at any time other than during the progress of the trial, or the taking of the evidence on default, in order that whenever practicable the whole proceeding may be under the immediate direction of the court. The practice in the old Court of Chancery seems to have been to order the examination to be taken upon the trial or during the taking of proofs on default, and either by a master or under the immediate direction of the chancellor himself, and in the case before us there does not seem to be any necessity for conducting the examination out of court and before the trial. The proceeding, at its best, is a harsh and offensive one, and it will naturally be less trying fo the defendant if it is conducted before the court itself. Also the testimony of the physicians as to the result of their personal examination will be more satisfactory to the court itself if taken-before the court than if taken upon a reference and produced secondhand. The question of the defendant’s impotency, whether it existed at the time of the marriage, and how long it is to continue, are all questions of fact necessary to be answered before a decree in this action can be rendered, and they are to be established by evidence produced to the "court. There does not seem to be any reason "why that evidence should not be taken and produced in the same manner in which the rest of the evidence in the case is taken. In short, while I see no error in the claim that the court may direct the defendant to submit to a physical examination of his person, I can discover no reason why a referee should be appointed to conduct the proceeding under which such examination is had, or to take, by way of depositions, the evidence or any part of the evidence bearing upon that question. An order can be made that the defendant submit to such an examination, to be taken upon and as a part of the trial, and the evidence of the surgeons can also be taken as a part of such trial and before the court.

And while I would not hold that a reference may not in any instance be ordered, at which such evidence may be taken, I am of the opinion that it should never be done unless peculiar circumstances clearly require it. In that respect the order before us is erroneous, and should, therefore, be reversed, but with leave to the respondent to apply fora physical examination of the defendant, to be conducted in a procedure that is clearly and specifically specified in the order and on the lines above suggested. No costs are allowed to either party.

All concurred.

Order reversed, without costs to" either party, with leave to respondent to apply for an order for a physical examination of the defendant.  