
    Nicholas Orlando, an Infant, by Frank Orlando, His Guardian ad Litem, Respondent, v. Syracuse Rapid Transit Railway Company, Appellant.
    Fourth Department,
    November, 1905.
    Physical examination before trial — order therefor set aside on account of previous voluntary examination — evidence of refusal to submit to second examination excluded — statements to- physician, when admissible.
    An ex parte order for a physical examination of plaintiff before trial of an action for personal injuries is properly set.aside, when it is shown that the plaintiff had already voluntarily submitted to such examination at defendant’s request and no reasons for such second examination are shown, in the moving affidavit or on the application to set the order aside. .
    It is not error to exclude evidence at trial of plaintiff’s refusal to submit tó a second physical examination..
    Statements made by plaintiff to his physician two days after the injury, describing his physical, condition, are. admissible.
    ' Appeal by the defendant, the.Syracuse. Rapid Transit Railway Company, from a judgment of the Supreme Court -in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 29th day of April,. 1905, upon the verdict of a jury for $1,000; also from an order entered in said clerk’s office on the 5th day of May, 1905, denying, the defendant’s, motion for a new trial made upon the minutes, and also from an- order entered in said clerk’s office on the 9th day of May, 1905, vacating and setting aside a previous order for the physical exapiination of the plaintiff pursuant to section 873 of the Code of Civil Procedure.
    
      
      Charles E. Spencer, for the appellant.
    
      Thomas Woods, for the respondent.
   Williams, J.:

The judgment and orders should be affirmed, with costs.

The action is to recover damages for personal injuries claimed to have been the result of defendant’s negligence.

Upon the trial the only question tried was the extent of plaintiff’s injuries and the amount of damages to be recovered.

Before the trial an order for the physical examination of the plaintiff was obtained ex parte under section 873 of the Code of Civil Procedure. The affidavits upon which the order was made showed, as required by subdivision i of section 872, that the defendant was ignorant.of the nature and extent of plaintiff’s personal injuries. Section 873 provides that “in any action brought to recover damages for personal injuries, where the defendant shall present to the court or judge satisfactory evidence' that he is ignorant of the nature and extent of the injuries complained of, the court or judge shall order that such physical examination be made,” etc. There was no suggestion in the affidavits that a physical examination had already been made at the request of the defendant with plaintiff’s consent without any order therefor.

Thereafter the plaintiff’s counsel presented to the justice who made the order an affidavit showing such former examination, and after hearing counsel upon both sides,-the justice vacated the order made by him for a physical examination on the ground that it had been improvidently granted.

jSTo affidavit appears to have been made in answer to the One presented to the justice, disputing the fact of the former examination, or excusing the omission to show that fact in the affidavits upon which the order for an examination was made.

Under these circumstances we cannot say the order setting aside the former order was erroneously granted. If it was claimed that a second examination was necessary for any special reasons, the facts relating thereto should have been made to appear by the defendant in the affidavits upon which the first order was granted or in answer to the application to set'the same aside.

It was not error for the trial court to exclude evidence offered by defendant as to the refusal by plaintiff-to submit to a second physical examination. There was nothing in the attitude of the plaintiff in view of what had occurred with reference to such examination which could properly influence the jury on the trial, and the ruling was, therefore, properly made. ’

The' evidence of Dr. McMorro.w, as to the statements made to him by the plaintiff, Was properly admitted. In effect the plaintiff merely Stated his then present condition that he was suffering from- sleeplessness, loss of appetite, nausea and vomiting and exhaustion. The doctor was plaintiff’s attending physician, and the statements Were made to enable the doctor to treat the plaintiff.. The accident occurred December 29, 1904.

These statements were two days later, and this action was not commenced until January '31, 1905. In view of these facts the evidence was competent and admissible under the case cited by both "sides. (Davidson v. Cornell, 132 N. Y. 228,236. See, also) McCready v. Staten Island El. R. R. Co., 51 App. Div. 338, 343., The verdict, $1,000, we cannot say is excessive.

All concurred.

J udgment arid order afñnüed-, with costs.  