
    Phil H. Moore, Respondent, v. J. Thomas Reinhardt, Appellant.
    First Department,
    February 4, 1910.
    Deposition — examination before trial — physical examination not authorized. —practice.
    The court, having adjourned an examination of a defendant before trial on allegations that he was too ill to attend on the day set, has no power to order him to submit to a physical examination by a physician appointed by it. The court has neither statutory nor inherent power to grant such order.
    
      
      It seems, that on a motion to punish the defendant for contempt for failure to attend such examination, the court, if it do not accept his physician’s affidavit as conclusive, may request him to submit voluntarily to a physical examination for the information of the court, and if he refuses, may find that he is acting in bad faith, and punish him for contempt.
    Appeal by the defendant, J. Thomas Reinhardt, from an order of the Supreme Court, made at the New York Special Term and éntered in the office of the clerk of the county of New York on the 6tli day of January, 1910, directing a physical examination of the defendant.
    
      Romeyn Berry, for the appellant.
    
      Walter B '. Raymond, for the respondent.
   Dowling, J.:

. Plaintiff having obtained on January 11, 1909, an order for the examination at Special Term of the defendant before trial, which was thereafter on March 9, 1909, modified by directing that the examination should proceed before a referee, a stipulation was entered into between the attorneys on March 22, 1909, adjourning the same without date and providing that’it might be brought on by either party on three days’ written notice. On. December fifteenth defendant gave notice that he would proceed with the examination on December twenty-second. Meantime, it is claimed, he was suffering from la grippe and neurasthenia, and his condition became such that when the time for his examination approached his attorneys notified plaintiff’s attorneys of his inability to attend and of their intention to apply for an adjournment. The referee, upon the ¡iresentation of a physician’s affidavit as to defendant’s physical condition, adjourned the examination without date, and plaintiff thereupon obtained at Special Term the order from which this, appeal is taken, which directed that a physician be appointed to examine the physical condition of the defendant “ and report thereon on or before the 12th day of January, 1910, to the court as to the physical ability of the defendant to be present at an. examination before trial” before the referee,, and which, further fixed the time and place of the physical examination and the date of the next hearing before the referee.' Coneededly, there is no statutory warrant for this order. But it is claimed that it is' an exercise of the inherent power of the court and can be sustained for that reason. There is not, however, a single case to be found in which such a power to compel the physical examination of a litigant has been sustained.

In England the courts have expressly denied their power, under the common law, to order an examination of documents or of premises and have never ordered a physical examination save under the writ “ de ventre inspiciendo ” and in actions for annulment of marriage on the ground of impotence. In both cases the power was exercised on the ground of public interests 'being involved. But, as the court said in McQuigan v. Delaware, Lackawanna & Western Railroad Company (129 N. Y. 55): “ It is very clear that the power [i. e., to order an examination of the person of a litigant] is not a part of. the recognized and customary jurisdiction of courts of law or equity. The doctrine that courts have an inherent jurisdiction to mould the proceedings to meet new conditions and exigencies is true, but in a limited sense. They cannot, under cover of procedure or to accomplish justice in a particular case, invade recognized rights of person or property. * * * Mor is it, .we conceive, within the power of the court to create remedies unknown to the common law, or institute a procedure not according to the course of the common law.” That case was followed in Cole v. Fall Brook Coal Co. (159 N. Y. 69). Had a motion been made to punish defendant for contempt for his failure to attend for examination, the court, if it did not accept the physician’s affidavit as conclusive, might well, have requested that defendant voluntarily submit to a physical examination that it. might be advised by a disinterested witness of defendant’s real condition, and the refusal of the defendant to submit to such an inspection might well convince the court of the bad faith of the plea and warrant it in imposing punishment for contempt. But the present order, being one for a compulsory examination, cannot be sustained on any ground.

The order should be reversed, with costs, and application for physical examination of defendant denied.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  