Opinion
March 9, 1949.
Appeal from Supreme Court.
The order further directed that at such examination, and for use and comparison thereat, plaintiff submit or authorize the submittal of X-ray photographs and examination reports theretofore made of him at Ray Brook sanatorium or in proceedings before the bureau of workmen's compensation. We may take judicial notice, and we think must presume, that the former X rays and reports called for were made by physicians and nurses in aid of diagnosis and treatment of plaintiff for physical ailment and as such that the information thus recorded was acquired in their professional attendance upon the plaintiff. Since the seal of privilege accorded by section 352 of the Civil Practice Act is directed to the disclosure of information so acquired, it attaches even though its disclosure is sought other than by a direct examination of the physician or nurse. Contra, the objective of the statute could be nullified. There was no sufficient showing before the Special Term that plaintiff had waived his privilege. The disclosures which appellant argues plaintiff made in hearings upon his claim for workmen's compensation and which constitute a waiver, are not shown in and form no part of the record on appeal. Order modified by striking therefrom its second decretal paragraph, without prejudice, and as modified affirmed, with $10 costs and disbursements to appellant. Settle order on five days' notice before a justice of this court. Foster, P.J., Heffernan, Brewster, Santry and Bergan, JJ., concur. [See post, p. 1008.]