I dissent and vote for reversal of the order appealed from.
I think the court has the power under section 873 of the Code to require plaintiff to permit a radiograph to he taken of his injured bones as part of his physical examination. The reasons are well stated in the opinion of Wheeler, J., in an unreported case printed in the record. It is the accepted method in universal use of determining the nature and extent of bone injuries. ■ The case of Mizak v. Carborundum Co. (75 Misc. Rep. 205; affd., 151 App. Div. 899) did not involve this question in any way. An order had been made in that case for a physical examination of the plaintiff, and the examination had already been had and completed when plaintiff moved to amend the order so as to require the physician to file in the clerk’s office a written report of the results of his examination. No other question was presented or decided. In Lasher v. Bolton’s Sons (161 App. Div. 381) plaintiff appealed from an order requiring her to permit defendant’s physician to take an X-ray picture of her injured foot. The order was properly reversed upon the grounds stated in the opinion of Woodward, J., other than the supposed want of power in the court below to make it. Two of the judges dissented. If the case is authority for the proposition that the court is without power under section 873 of the Code to require a plaintiff in a negligence action who claims to have sustained bone injuries to permit an X-ray picture to be made as a part of his physical examination before trial, then I am unwilling to follow it.
I recommend that the order appealed from be reversed, with ten dollars costs and disbursements, and that the motion be remitted to the Special Term to be decided upon its merits, inasmuch as the motion was denied solely for want of power to grant it.
Order affirmed, with ten dollars costs and disbursements.