No such objection was made to the questions, however, and it is apparent from what transpired, that the objections were sustained solely upon the ground that answers were prohibited by reason of section 352 of the Civil Practice Act. Prior to the decision of this court in Capron v. Douglass ( 193 N.Y. 11) numerous cases had been decided in this State holding that where a plaintiff called a physician who gave testimony as to his physical condition that fact did not constitute a waiver of the prohibition contained in the statute and did not open the door so that the defendant could call other physicians to testify as to the physical condition which they found in treating the plaintiff. Many of those cases are collated in the opinion in Hethier v. Johns ( 198 App. Div. 127; revd., 233 N.Y. 370).
Even though plaintiff has alleged in his complaint that he is afflicted with a heart ailment and that such allegation is the foundation of his causes of action, it is not a waiver of the privilege afforded by section 352 of the Civil Practice Act which may only be accomplished in open court on the trial or by stipulation. (Civ. Prac. Act, ยง 354.) If disclosure is made at the trial by plaintiff ( Apter v. Home Life Insurance Company, 266 N.Y. 333; Steinberg v. New York Life Ins. Co., 263 N.Y. 45; Hethier v. Johns, 233 N.Y. 370; Capron v. Douglass, 193 N.Y. 11) defendant may apply, in the light of such waiver, for suspension for a reasonable length of time in which to examine and produce physicians who attended him and hospitals in which he was maintained with respect to that ailment. Close, P.J., Hagarty, Johnston, Adel and Lewis, JJ., concur.
No such objection was made to the questions, however, and it is apparent from what transpired, that the objections were sustained solely upon the ground that answers were prohibited by reason of section 352 of the Civil Practice Act. Prior to the decision of this court in Capron v. Douglass ( 193 N. Y. 11) numerous cases had been decided in this State holding that where a plaintiff called a physician who gave testimony as to his physical condition that fact did not constitute a waiver of the prohibition contained in the statute and did not open the door so that the defendant could call other physicians to testify as to the physical condition which they found in treating the plaintiff. Many of those cases are collated in the opinion in Hethier v. Johns ( 198 App. Div. 127; revd., 233 N. Y. 370).