D'Agostino v. D'Agostino , 173 Misc. 312 ( 1940 )

Froessel, J.

In an action to annul a marriage for fraudulently concealing pregnancy, plaintiff husband seeks a blood grouping test. Defendant opposes because plaintiff has not complied with the order of this court dated December 1, 1939, awarding temporary alimony and counsel fee. Section 306-a of the Civil Practice Act provides that “ wherever it shall be relevant to the prosecution * * * of an action ” the court “ shall direct ” such test. Under the circumstances the motion will be granted and the defendant relegated to her other remedies to enforce the provisions of the order. The court will name a physician in the order to be entered hereon, which order shall provide that his fee shall be paid by the plaintiff in advance. Said physician shall submit a report of his findings to counsel for both sides. Settle order on notice.