
    Agnes Kolenik et al., Plaintiffs, v. Rudin et al., Defendants.
    Supreme Court, Special Term, New York County,
    March 10, 1952.
   Benjamin F. Schreiber, J.

Motion to vacate defendants’ notice of examination of plaintiff Agnes Kolenik is denied. The motion to vacate with respect to the infant plaintiff John W. Kolenik is disposed of as follows; The examination of the infant will be referred to an official referee to determine the infant’s mental capacity to comprehend the obligation of an oath. If the referee determines that the infant has sufficient mental ability to understand the oath, he will swear the infant witness and the examination will then proceed. If the witness is incapable of understanding the oath, the examination will be dispensed with and the motion to vacate granted. (See Bennett v. Ros, 120 N. Y. S. 2d 283.)  