
    Ernest Genevose, Respondent, v. Wheatality Bakery, Inc., Appellant, et al., Defendants.
    Supreme Court, Appellate Term, First Department,
    June 23, 1960.
    
      Theodore T. Weiser and Milton Pfeffer for appellant. Italo H. Ablondi and Richard F. Mele for respondent.
   Per Curiam.

Since the action is pending in New York State, the forum chosen by the plaintiff, it was improvident exercise of discretion to direct his physical examination by a Connecticut physician. The examination should be made by a physician licensed in New York who is subject to the jurisdiction of the City Court of the City of New York, so that he will be available to testify at the trial if need be. Such physician shall be either the physician already designated by the defendant or such other physician as the court below may in its discretion appoint. The examination shall proceed at such time and place as may be agreed upon by the parties, or in the event of their inability to agree, at such time and place, including Bridgeport, as the court below may in its discretion direct.

The order so far as appealed from should be modified, without costs, and motion remitted to the court below for further disposition in accordance with the foregoing.

Concur—Steuer, J. P., Hoestadter and Aurelio, JJ.

Order modified, etc.  