Order denying appellant's motion for an order directing the respondent to submit to a physical examination reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Respondent was examined by defendant's doctor prior to the beginning of the action. No examination was had "in the action," as provided by section 306 of the Civil Practice Act. Defendant, therefore, has not waived the statutory remedy. The case of Whitaker v. Staten Island M.R.R. Co. ( 76 App. Div. 351) can be distinguished, because in that case the first examination was had after the action had been instituted. Lazansky, P.J., Kapper and Scudder, JJ., concur; Rich and Carswell, JJ., dissent. Settle order on notice, at which time a physician to make the examination will be named and the time and place of the examination will be fixed.