Weiss v. Weiss

28 Misc. 2d 602, 221 N.Y.S.2d 294, 1961 N.Y. Misc. LEXIS 3550

Opinion

William R. Brennan, Jr., J.

The motion for reargument is granted. Upon reargument, the original decision is adhered to.

By notice of motion, without supporting affidavits, the plaintiff seeks to have taken the testimony of ‘1 the physician attached to Pilgrim State Hospital who attended the defendant in a professional capacity.” No reason for the examination of the witness or witnesses is stated nor is he (or they, if there be more than one) identified. It is not shown that three physicians have been appointed who have reported to the court. (Domestic Relations Law, § 7, subd. 5, par. [b].) Since the provision for examination of the attending physician made in the statute was so made for the public convenience (Cohen v. Cohen, 286 App. Div. 1035, 1036), the plaintiff is required to establish grounds and necessity for a pretrial examination of such physician or physicians. Furthermore, since no judgment could be rendered in such an action as the one at bar without a unanimous finding of incurable insanity by the three court-appointed physicians (see statutory citation above), it is clear that other steps in the action, such as pretrial examination of attending physicians, should await the incoming of such a report as would be required to sustain a judgment.