#### Fannie Landau, an Infant, by Frank Heitzner, Her Guardian ad Litem, Respondent, *v.*Nathan Citron and Herman Citron, Appellants.

(Supreme Court, Appellate Term,

May, 1905.)

¡Physical examination — Only in connection with oral examination.

Physical examination of the plaintiff, under section 873 of the Code of Civil Procedure, can only he ordered in connection with an oral examination of plaintiff as a witness before trial.

The oral examination may be limited; but provision therefor cannot be stricken from the order, leaving provision for the physical examination only to stand.

Appeal from an order of the City Court of the city of ¡New York, vacating and setting aside part of an *ex parte*order made by Justice Conlon, February 17, 1905, directing plaintiff to appear before J ames Eidgway, referee.

Johnston *&*Johnston (Edward W. S. Johnston, of counsel), for appellants.

Eugene I. Yuells, for respondent.

Scott, J.

An order having been made under section 873, Code of Civil Procedure, for the physical examination of plaintiff and her examination before trial, the court below, by the order appealed from, has stricken out of the order the provision for plaintiff’s oral examination, leaving intact the appointment of the referee named in the original order (although nothing is left for him to do) and the provision for a physical examination by the physician named. This reduces the order to the precise form condemned by thé Court of Appeals in Lyon v. Manhattan R. Co., 142 N. Y. 301. As was forcibly, demonstrated by the opinion in that case it would be utterly impossible, under such an order, to attain the end which the Legislature had in view, and would defeat every practical and useful object sought to be accomplished. While the affidavits on the part of-*355defendants may not be sufficient to- justify an order for the general examination of plaintiff as a witness before trial, they are certainly sufficient to-, sustain an order for her physical examination. Green v. Middlesex R. R. Co., 10 Misc. Rep. 473; Moses v. Newburgh El. R. Co., 91 Hun, 278. If it was proper .to order a physical examination of plaintiff, provision for her oral examination must accompany the order. Section 873 of the Gode provides that: “Where the person to- be examined is a party to a pending action * * * the order may, in the discretion of the judge, designate and limit the particular matters as to which he shall be examined.” If plaintiff considered that no proper case had been shown for her general examination, her proper remedy Avas to apply for a modification of the order so as to limit the scope of her examination which, in "the discretion of the court beloAv, might have been confined to questions touching the nature and extent of her injuries. But for the striking out of all provision for an oral examination there "is no- Avarrant or authority.

Order reversed, Avith ten dollars costs and disbursements, without prejudice, upon payment of such costs and disbursements, of a motion by plaintiff to limit the scope of her oral examination. - ■ ■■

Tktjax and Dowliw, JJ., concur.

Order reversed, with ten dollars costs and disbursements, without prejudice, upon payment of costs and disbursements, of a motion by plaintiff to limit the scope of her oral examination. ......- •