
    Charles La Plant, Individually and as Guardian ad Litem of Charles D. La Plant, Plaintiff, v. Hyman Atias, Defendant.
    County Court, Monroe County,
    March 3, 1958.
    
      Robert T. Skipworth for defendant.
    
      William L. Clay for plaintiff.
   George D. Ogden, J.

Upon the complaint and notice of motion, with accompanying affidavit, it appears that the infant plaintiff herein was approximately 7 years of age at the time of the accident; his examination before trial is sought. This court has been unable to find any decided cases on the subject, except Blagburn v. Milrita Realty Corp, (204 Misc. 74). In that case the court held that an infant plaintiff 11 years of age (nearly 12), who was sought to be examined before trial, should appear before the court or official referee and be examined, if found qualified to testify.

As to his qualifications to testify, it appears that the infant plaintiff in the above-entitled action was of tender years at the time of the accident, and the court holds, as a matter of discretion, that he is not qualified and his testimony would not be accepted; therefore, his examination before trial is denied. The motion by defendant for such examination of infant plaintiff is, in all respects, denied, with $10 costs.

Submit order.  