
    Marguerite Smyth, an Infant over the Age of Fourteen Years, by Ira M. Smyth, Her Guardian ad Litem, Appellant, v. Isaac Lichtenstein, Respondent.
    (No. 2.)
    ■First Department,
    March 24, 1910.
    Discovery — action for assault — physical examination before trial denied.
    A defendant sued by a woman to recover damages caused by indignities' and • assault-will not be allowed a physical examination of the plaintiff before trial as an adverse witness under section 873' of the' Code' of Civil Procedure, where the purpose, is not to obtain evidence of physical injuries alleged to have been caused by the assault, but to inquire into the previous history and condition of the woman.
    Ingraham, P. J., and Laughlin, J., dissented, with opinion.
    
      Appeal by the plaintiff, Marguerite Smyth, an infant, etc., from an order of the Supreme Court, made at the New-York Special Term and entered in the office of the clerk of the county of: New York on the 2d day of February, 1910, denying a ■ motion to vacate an order for the physical examination of the plaintiff as an advérse witness before trial.
    
      S. A. Lowenstein, for the appellant.
    
      Jesse S. Epstein off counsel [Epstein Brother's, attorneys], for the respondent. •
   Clarke, J.:

This is an action to recover damages for alleged indignities and assault. In addition to the order for the examination of the.plaintiff upon the issues of the action, which we have determined ought not to have been granted in a decision handed down herewith (Smyth v. Lichtenstein, No. 1, 137 App. Div. 310), an order was made requiring the plaintiff to submit; to a physical examination as an adverse witness.

■ The plaintiff has furnished a bill of particulars; the defendant in his answer has denied the assault, It is apparent from the complaint and the bill of particulars tliat the gravamen of this action consists of the indignities to which plaintiff alleges she was subjected. No necessity for a physical examination is shown. It is apparent from the moving papers that the purpose of the defendant is not to obtain evidence of the physical injuries alleged to have been suffered as the result of his assault, but to inquire into her previous history and physical condition. If an examination for such purpose could ever be permitted, we are satistied that the moving affidavits are insufficient and of no’probative value. We think that the order for the examination in the case at bar does not come fairly within the intent of section 873 of the Code of Civil Procedure, but that the examination is. sought for ulterior purposes. ... . :

The order, appealed from should be • reversed, with- ten 'dollars costs' and' disbursements, and the motion - granted, with ten dollars costs. ■' ' • '

Scott and Miller, J«L, concurred; Ingraham, P„ J.,’ and Laughlin. J., dissented. .

Ingraham, P. J. (dissenting):

I dissent. By section 873 of the Code of Civil Procedure, it is provided that in every action to recover damages for personal injuries the defendant is entitled to an order requiring the plaintiff to submit to a physical examination by one or more physicians or surgeons to. be designated by the court or judge where the defendant shall present to the court or judge satisfactory evidence that lie is ignorant of the nature and extent of the injuries complained of. The court has no right to refuse to enforce this mandatory provision because it thinks that the purpose of the defendant is not to obtain evidence of physical injuries alleged to have been suffered as the result of the assault, but to inquire into her previous history and physical condition. It is to allow the defendant to ascertain the physical condition of a person claiming to be injured as the result of a defendant’s trespass that this provision was enacted. Here the plaintiff claims that her present physical condition was the result of this assault. The defendant asks that a physical examination be ordered to show that the present physical condition was not the result of the assault, but that such physical condition existed prior to the alleged assault. There is no question as to' the lack of knowledge of the plaintiff’s physical condition, and it seems to me that this is a perfectly justifiable inquiry; that the respondent has a right to prove, if he can, by this examination that the physical condition for which the plaintiff claims damages was not caused by the assault, and there is nothing in this case to show that the application for this physical examination was not made in good faith and for a legitimate and proper purpose.

I think the order should be affirmed.

Laughlin, J., concurred.

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