
    In the Matter of the Estate of Esther B. W. Imparato, Deceased.
    Surrogate’s Court, New York County,
    January 25, 1957.
    
      Di Lorenzo & Alfert for petitioner.
    
      Phineas Toby for respondent.
   S. Samuel Di Falco, S.

Sufficient facts showing the physical condition having been presented, this motion by the surviving spouse to perpetuate his testimony is granted. That he may be incompetent to testify at the trial by virtue of the provisions of section 347 of the Civil Practice Act is not a valid objection to granting his examination (Lemlich v. Lemlich, 266 App. Div. 748; Matter of Tow, 93 N. Y. S. 2d 899; Matter of Lowenstein, 138 N. Y. S. 2d 420; Matter of Dobrotescu, N. Y. L. J., May 17, 1950, p. 1755, col. 3). The examination will be conducted before a law assistant of this court at the hospital where the moving party is a patient.

Submit order on notice.  