Johnson v. Johnson

¶1Under the circumstances of this case the alternative direction for an open commission was warranted. However, it was an improvident exercise of discretion to impose the total burden of the expenses upon defendant at this Stage of the proceedings. Only if plaintiff is eventually successful in the action Should defendant be compelled to reimburse her for the expense of the attendance of her attorney at the examination to the extent indicated above. (See Fitzgerald v. Fitzgerald, 262 App. Div. 708.) Settle order on notice. Concur — Botein, P. J., Breitel, Valente, McNally and Eager, JJ.