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 tliat 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 satistied 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, J«L, concurred; Ingraham, P„ J.,’ and Laughlin. J., dissented. .