Defendant’s motion to examine the infant plaintiff before trial is disposed of as follows: The infant plaintiff will appear at Special Term, Part II, on May 7, 1953, at 11:00 a.m., and the Justice presiding thereat will determine the infant’s mental capacity to comprehend the obligation of an oath pursuant to section 365 of the Civil Practice Act. If the court determines that the infant has sufficient mental ability to understand the oath, he will swear the infant and the examination will then proceed as to the matters set forth in the notice of motion. If the witness be incapable of understanding the oath, the examination will be dispensed with and the motion to examine denied (cf. Kolenik v. Rudin, N. Y. L. J., March 10, 1952, p. 956, col. 7 [13 Misc 2d 718]). Plaintiff, Edward Collins, is likewise directed to attend at the same time and place as above set forth for examination as to all the matters set forth in the notice of motion.
Plaintiff’s cross motion to examine the defendant Ropollo is granted and said defendant is directed to attend for examination with respect to the matters set forth in the notice of cross motion at the same time and place as above set forth, said examination to proceed immediately upon completion of the plaintiffs’ examinations; or if the infant’s examination is not ordered as above provided, then upon completion of the examination of the adult plaintiff.