Kelleher v. Cohoes Trucking Co., 25 F. Supp. 965 (S.D.N.Y. 1938)

Morris Ehrlich, of New York City, for plaintiffs.

E. C. Sherwood, of New York City, for defendant.

CONGER, District Judge.

This is an application on the part of the plaintiff for a copy of a medical examination made of the plaintiff by a physician for and on behalf of the defendant.

While it does not appear in the moving papers herein, it was stated on the argument of the motion by the plaintiff's attorney, and not contradicted by the attorney for the defendant, that the plaintiff's *966 attorney had consented to allow plaintiff to be examined by a physician for and on behalf of the defendant, and the examination was so had. Under the circumstances the plaintiff is entitled to a copy of the report of the said physician's examination of the plaintiff.

Plaintiff's attorney could have refused the examination and compelled the defendant to apply to the Court under Rule 35(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for said examination. Instead, he allowed such examination to take place without compelling the defendant to go to Court to obtain it. In other words, plaintiff waived the rights which he had under Rule 35(a), but he does not waive his rights under the remainder of the rule, to wit, Rule 35(b) (1). Therefore, he is entitled to the copy of the physical examination so made for and on behalf of the defendant.