
    Morton M. Singer et al., Respondents, v. Aaron H. Singer, Appellant, et al., Defendants.
   Order, entered on January 15, 1965, as resettled on January 29, 1965, which directed a physical and mental examination of the appellant, unanimously reversed on the law and on the facts, with $30 costs and disbursements to appellant, and the motion to vacate the notice granted, with $10 costs. An appeal is pending, presently, in this court from an earlier order which denied appellant’s motion to. dismiss the complaint in this ease for insufficiency. Also pending is an appeal by some of these plaintiffs from a judgment entered in a proceeding instituted by them under article 5-A of the Mental Hygiene Law for the appointment of a committee of the property of this appellant and an examination of appellant, which judgment dismissed their petition on the merits. The appeals were consolidated for hearing on a single consolidated record. The summons and complaint in this ease and notice for examination were served simultaneously, the notice presumably having been served pursuant to CPLR 3121. Since the complaint is under attack and the disposition of the appeal with respect thereto may determine the rights, if any, of the respondents to the relief claimed in this appeal, the examination sought should not now be permitted. Fragmentation of issues by three separate appeals in a ease of this nature is not regarded with favor especially where, as here, the dispositive issue, determinative of the respective rights of the parties, is not squarely presented in the initial appeal, but comes to us for resolution in a subsequent appeal. Concur — Botein, P. J., Breitel, McNally, Stevens and Steuer, JJ.  