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).
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).