Opinion
January, 1930.
Order granting defendant's motion for a physical and oral examination of plaintiff modified by eliminating all the items therein except items "b" and "c," and as thus modified affirmed, with ten dollars costs and disbursements to appellant; examination to proceed on five days' notice at same place and hour. One group of items (a-1, a-2 and a-5) thus eliminated relates to matters not shown to be within the personal knowledge of the plaintiff, but, on the contrary, appear to be within the personal knowledge of defendant. The other group of items (a-3, a-4, a-6 and d) is in effect a cross-examination of plaintiff with respect to matters upon which she has the burden of proof under the complaint, and, therefore, in the proper exercise of discretion, may not be made the subject of an examination of plaintiff by defendant in advance of trial. Lazansky, P.J., Young, Kapper, Hagarty and Carswell, JJ., concur.