
    David Caban, an Infant, by His Guardian ad Litem, Brigida Caban, et al., Appellants, v. George Bartzon, Respondent.
   In a negligence action by an infant to recover damages for personal injuries sustained by him, and by Ms mother for loss of services and medical expenses, plaintiffs appeal from an order of the Supreme Court, Kings County, dated January 12, 1961, denying their motion for a preference in trial under rule 9 of the Kangs County Supreme Court Rules, with leave to renew on consent to an examination of the infant plaintiff by an impartial physician to be designated by the court. Order affirmed, without costs. The conditional denial of the preference may not be said to have been an improvident exercise of discretion in view of: (a) the lack of a definite statement as to which of the claimed injuries are permanent; (b) the lack of affidavits by either of the two treating physicians; and (c) the lack of a statement as to the mental and neurological condition of the infant plaintiff before the accident. Beldoek, Acting P. J., Pette and Brennan, JJ., concur; Kleinfeld and Christ, JJ., dissent and vote to reverse the order and to grant the preference application, with the following memorandum: A reputable doctor has stated that the infant suffered serious damage to the brain and that some of the effects of such damage will be permanent. The record shows that the infant was hospitalized for 14 days and that the medical expenses total about $1,200. Defendant failed to file any affidavit contradicting plaintiffs’ claims, even though defendant’s doctor had examined the infant. Under the circumstances, it was an improper exercise of discretion to deny the preference, even conditionally (cf. Jacobs v. Milazzo, 9 A D 2d 950),  