Smith v. New Jersey & Hudson River Railway & Ferry Co.

123 A.D. 493, 108 N.Y.S. 415, 1908 N.Y. App. Div. LEXIS 94

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1908
• Status: Published

Opinion

Per Curiam:

The plaintiff should not be allowed to prosecute her action if she persists in her refusal to submit to the examination authorized by the Code of Civil Procedure

* and ordered by the court. Hor should the action be kept alive indefinitely. The defendant is entitled to have it promptly and finally disposed of. The order appealed from will be modified so as to provide that the complaint be stricken out unless the plaintiff shall within twenty days after the service of the order upon her attorney, and upon due notice to the attorney for the defendant submit herself to a further and thorough, physical examination by the physician heretofore appointed, with ten dollars costs and disbursements to appellant.

Present — Patterson, P. J., Ingraham, Clarke, Houghton and Scott, J J.

Order modified as directed in opinion, with ten dollars costs and disbursements to appellant. Settle order on notice.

See § 873.—[Rep.