Heit v. Kessler

180 Misc. 272, 41 N.Y.S.2d 822, 1943 N.Y. Misc. LEXIS 1909

• Court: New York Supreme Court
• Decided: March 30, 1943
• Status: Published

Opinion

Cuff, J.

Motion by defendant for an order to examine plaintiff physically before trial. Plaintiff’s attorney’s objection is that plaintiff is now in the armed forces of the nation and not within the jurisdiction of the court. That is not a reason for denying this relief. Plaintiff may be examined at the place where he is stationed if that fact can be disclosed. He may come to this jurisdiction on leave. To be afforded a physical examination near the time of the accident, when the injuries complained of "were sustained, is a substantial right of the defendant. This motion is granted. The order null provide that plaintiff upon coming into this jurisdiction will give notice to defendant’s attorney of his presence here and furnish that notice in sufficient time so that the examination may be arranged. The order will also provide that plaintiff give notice to defendant subject to the .rules of the armed forces of his present location or any change of location so that defendant may elect to arrange for the examination at the place where .plaintiff is now or will hereafter be stationed. Order on notice.