App. Div.] First Department, March, 1910. Droege (197 N. Y. 44). In that case the respondent attempted to appeal from an order of this court removing him from the office of city magistrate of the city of New York and the court held that that was not a special proceeding within the meaning of the Code of Civil Procedure. In that case the court, speaking of these disbarment proceedings, stated that they had conditions which were unique; that appeals to the Court of Appeals from decisions of the former General Term and Appellate Division in such cases have always been entertained since the decision in Matter of Cooper (22 N. Y. 67). I have come to the conclusion, therefore, that this should be treated as a special proceeding within the provisions of the Code of Civil Procedure. Being so treated, the court has power to issue a commission, and the facts presented plainly show the necessity for such a commission. The motion will, therefore, be granted. The court, however, has no power to compel the respondent to annex to the commission any papers in his possession. The commission to issue will be an ordinary commission to examine the witness named upon written interrogatories, with leave to the respondent to join in the commission, and the proceedings before the referee will be stayed until the return of such commission. LAUGHLIN, CLARKE, SCOTT and MILLER, JJ., concurred. MARGUERITE SMYTH, an Infant over the Age of Fourteen Years, by IRA M. SMYTH, Her Guardian ad Litem, Appellant, v. ISAAC LICHTENSTEIN, Respondent. (No. 2.) First Department, March 24, 1910. Discovery - action for assault - physical examination before trial denied. A defendant sued by a woman to recover damages caused by indignities and assault will not be allowed a physical examination of the plaintiff before trial as an adverse witness under section 873 of the Code of Civil Procedure, where the purpose is not to obtain evidence of physical injuries alleged to have been caused by the assault, but to inquire into the previous history and condition of the woman. INGRAHAM, P. J., and LAUGHLIN, J., dissented, with opinion. First Department, March, 1910. [Vol. 137. APPEAL by the plaintiff, Marguerite Smyth, an infant, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of February, 1910, denying a motion to vacate an order for the physical examination of the plaintiff as an adverse witness before trial. S. A. Lowenstein, for the appellant. Jesse S. Epstein of counsel [Epstein Brothers, attorneys], for the respondent. CLARKE, J.: This is an action to recover damages for alleged indignities and assault. In addition to the order for the examination of the plaintiff upon the issues of the action, which we have determined ought not to have been granted in a decision handed down herewith (Smyth v. Lichtenstein, No. 1, 137 App. Div. 310), an order was made requiring the plaintiff to submit to a physical examination as an adverse witness. The plaintiff has furnished a bill of particulars; the defendant in his answer has denied the assault. It is apparent from the complaint and the bill of particulars that the gravamen of this action consists of the indignities to which plaintiff alleges she was subjected. No necessity for a physical examination is shown. It is apparent from the moving papers that the purpose of the defendant is not to obtain evidence of the physical injuries alleged to have been suffered as the result of his assault, but to inquire into her previous history and physical condition. If an examination for such purpose could ever be permitted, we are satisfied that the moving affidavits are insufficient and of no probative value. We think that the order for the examination in the case at bar does not come fairly within the intent of section 873 of the Code of Civil Procedure, but that the examination is sought for ulterior purposes. The order appealed from should be reversed, with ten dollars. costs and disbursements, and the motion granted, with ten dollars costs. SCOTT and MILLER, JJ., concurred; INGRAHAM, P. J., and LAUGHLIN, J., dissented. App. Div.] First Department, March, 1910. INGRAHAM, P. J. (dissenting): I dissent. By section 873 of the Code of Civil Procedure, it is provided that in every action to recover damages for personal injuries the defendant is entitled to an order requiring the plaintiff to submit to a physical examination by one or more physicians or surgeons to be designated by the court or judge where the defendant shall present to the court or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of. The court has no right to refuse to enforce this mandatory provision because it thinks that the purpose of the defendant is not to obtain evidence of physical injuries alleged to have been suffered as the result of the assault, but to inquire into her previous history and physical condition. It is to allow the defendant to ascertain the physical condition of a person claiming to be injured as the result of a defendant's trespass that this provision was enacted. Here the plaintiff claims that her present physical condition was the result of this assault. The defendant asks that a physical examination be ordered to show that the present physical condition was not the result of the assault, but that such physical condition existed prior to the alleged assault. There is no question as to the lack of knowledge of the plaintiff's physical condition, and it seems to me that this is a perfectly justifiable inquiry; that the respondent has a right to prove, if he can, by this examination that the physical condition for which the plaintiff claims damages was not caused by the assault, and there is nothing in this case to show that the application for this physical examination was not made in good faith and for a legitimate and proper purpose. I think the order should be affirmed. LAUGHLIN, J., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. First Department, March, 1910. [Vol. 137. WILLIAM J. MOORE, an Incompetent Person, by ROYAL E. T. RIGGS, His Guardian ad Litem, Appellant, v. WILLIAM L. FLAGG, Respondent. First Department, March 24, 1910. Incompetent persons-habitual drunkard court-inherent jurisdic tion over incompetents — power to appoint guardian ad litem. The Supreme Court, by virtue of its inherent jurisdiction over the persons and estates of incompetents, may appoint a guardian ad litem for one adjudged to be a habitual drunkard in order that he may sue in equity to set aside a note alleged to have been procured from the incompetent by one occupying a fiduciary relation, and to vacate a judgment taken by default in an action on the note, if no committee of the property of the incompetent has been appointed, but merely a committee of his person. An incompetent retains title to his property, although a committee of his person has been appointed, and even a committee of the property is a mere bailiff appointed to administer it subject to the direction of the court. A guardian ad litem is not a party to a suit, but an officer appointed by the court to prosecute or defend in the interest of the incompetent. It seems, that the statute giving a committee of the property the right to sue is merely permissive and does not prevent the court from appointing a guardian ad litem for the purpose. APPEAL by the plaintiff, William J. Moore, an incompetent person, etc., from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of January, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant's demurrer to the complaint upon the ground that plaintiff has no legal capacity to sue, and dismissing the said complaint. Dudley Davis of counsel [John Vernou Bouvier, Jr., with him on the brief], John B. Doyle, attorney, for the appellant. William L. Flagg, respondent, in person. CLARKE, J.: The complaint sets up the following facts: That on January 6, 1909, a petition was presented to the Supreme Court by Sarah A. App. Div.] First Department, March, 1910. Moore, the mother of William J. Moore, the plaintiff, for an order for a commission to issue to inquire into the alleged habitual drunkenness of the plaintiff and his incompetency by reason thereof; that on the argument of said motion on January twelfth the defendant appeared as attorney for the plaintiff; that on February first the plaintiff purported to execute and deliver his promissory note in writing payable on demand to the defendant for $5,000; that the plaintiff was then wholly incapacitated and incompetent and did not possess sufficient mental power and ability to know and understand the nature, force and effect of his said act, and the defendant was fully aware of said incapacity and incompetency, and wrongfully and fraudulently, with intent to defraud the plaintiff, knowingly procured his signature to said note; that the defendant was then the sole attorney and counselor and legal adviser of the plaintiff, and, taking advantage of the fiduciary relationship so existing, induced and persuaded the plaintiff, by fraud, deceit and undue influence, to execute and deliver the said note; that demand upon the plaintiff for payment purports to have been made on the second of February, and on the same day a summons in an action by the defendant against the plaintiff on said note was served on the plaintiff in the office of the defendant herein; that the complaint in said action was never served upon the plaintiff; that pursuant to an order entered on February twenty-sixth a commission de lunatico inquirendo was issued, and that upon the hearings upon said commission the plaintiff was represented by the defendant as his attorney; that an inquisition duly finding the plaintiff an incompetent was found on March thirtieth. Notice of a motion for an order to confirm said inquisition and to appoint said Sarah A. Moore committee of the person of plaintiff was served on this defendant on April second; that said motion came on to be heard on April seventh; that on April tenth a judgment was entered in the action, in which the defendant Flagg was plaintiff and William J. Moore, plaintiff herein, was defendant, by default for $5,056.25; that on April fifteenth defendant caused execution on said judgment to be issued to the sheriff, and that on April fifteenth an order was granted confirming the inquisition and appointing Sarah A. Moore committee of the person of William J. Moore; that Royal E. T. Riggs was appointed guardian ad litem of William J. Moore by an |
