Opinion
March Term, 1902.
Lewis E. Carr, for the appellants.
W.W. Buckley, for the respondent.
Were it not for a ruling upon evidence we should have no hesitation in affirming this judgment; for the inferences most favorable to plaintiff were insufficient to warrant any finding by the jury that the will of Joseph H. Bryan was not valid or that its execution was not his "free, unconstrained and voluntary act." The ruling, however, to which we will briefly refer, requires that the judgment be reversed.
One of the physicians, who had attended the deceased before he died, was called as a witness by plaintiff, and after testifying that he had first visited Mr. Bryan during September, 1899, the month of his death, and had obtained information while so acting professionally for him, was asked to state his condition at that time. Objection was interposed, which the trial judge sustained, and the physician was prevented from giving such testimony.
It is to be noted in passing that all the defendants other than the chief beneficiary, Fannie Louise Burroughs ( née Temple), had joined with the plaintiff in asking that the will should be declared invalid; and, together, they represented the heirs at law and next of kin of Joseph H. Bryan. The exclusion of the testimony sought to be elicited was because of the prohibition contained in section 834 of the Code of Civil Procedure; and such ruling, if made prior to the amendment of 1893 embodied in section 836 of the Code, would have been right. ( Renihan v. Dennin, 103 N.Y. 573; Matter of Coleman, 111 id. 220.)
By that amendment, however, it is provided: "But a physician or surgeon may, upon a trial or examination, disclose any information as to the mental or physical condition of a patient who is deceased which he acquired in attending such patients professionally, except confidential communications, and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question by the executor or executors named in said will, or the surviving husband, widow, or any heir at law or any of the next of kin, of such deceased, or any other party in interest." (Laws of 1893, chap. 295.)
As held in Matter of Murphy (85 Hun, 575), "The purpose of the amendment evidently was to open more widely the door to the introduction of the evidence of medical attendants of a deceased patient when the validity of his will should be in question. The right of waiver was, therefore, extended to others having the relations mentioned to the deceased, and to those having the legal relation of parties in interest, and who are properly in the action or proceeding in which the question arises before the court."
It is insisted by the respondent that here there was no "express waiver" and that the mere calling of the physician as such, was insufficient to constitute a waiver. This precise question, however, has been determined adversely to the respondent in Holcomb v. Harris ( 166 N.Y. 257, 263), where the court said: "It is difficult to imagine a clearer act of waiver than for the legal representatives of a deceased patient to call his former physician to the stand and ask him to disclose professional information falling within the provisions of section 834 of the Code. * * * The rejected evidence was material, and, while regretting the necessity for a new trial, we are compelled to hold that this ruling of the trial judge presents reversible error."
We can add nothing to this authority, which is controlling upon us, and requires that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.