Opinion
April 2, 1951.
Present — Dore, J.P., Cohn, Callahan, Van Voorhis and Shientag, JJ.
On the state of facts disclosed, defendants were not guilty of a willful contempt of court and should not have been held in contempt or their answers stricken out on the conditions stated. A serious question was raised, supported by a verified statement of defendants' physician, as to the ability of defendant Charles Druck to appear at the times in question for the examination without danger to his health. Order unanimously reversed, with $10 costs and disbursements, and the motion to punish defendants for contempt and to strike out their answers denied on condition, however, that the examination of defendant Clements proceed expeditiously and that defendant Charles Druck on his return to New York shall, within two days thereafter, submit to an examination by a physician to be appointed by Special Term at defendants' expense and, if said physician certifies that Druck's heart condition is such that he cannot presently safely submit to an examination before trial, the said examination before trial, unless waived by plaintiff, shall be deferred until the period certified by the physician as dangerous to the health and life of the witness shall have passed, and the trial adjourned accordingly. Settle order on notice.