
    MASON v. LIBBEY.
    
      N. Y. Supreme Court, First Department; Special Term and Chambers,
    March, 1877.
    Again,
    April, 1877.
    Compelling Affidavit fob the pubfosb of Motion.—Examination of Pabty befobe Tbial.
    A physician who has once made an affidavit to facts derived in a professional capacity, for use against his patient, may be compelled at the instance of the patient to make an affidavit upon the same subject.
    
    The insanity of a party is ground for refusing to order examination before trial.
    
    Emma J. Mason brought this action against Lydia C. Libbey, to reach certain real property which she claimed as cestui que trust.
    
    
      The complaint alleged that the defendant was formerly the wife of one Heath, and the plaintiff was the issue of their marriage; that said Heath conveyed his property to the defendant with the understanding that it should be held by her for the common use and benefit of the family,—the husband, the defendant and the plaintiff; and claimed that defendant, after the husband’s death, held the property in trust partly for the use of the plaintiff.
    The complaint further alleged that the defendant became insane in 1859, and partially recovered in 1863; and that said Heath, her husband, in his life time, allowed her to control the property, because of his fear that opposition on his part might cause a return of the grievous malady with which she had been afflicted, and from which she had only partially recovered.
    I. March, 1877. Motion to punish for contempt in refusal to make affidavit.
    The husband of the plaintiff made an affidavit for purposes of a motion made by the plaintiff in the Second Department (reported in 1 Abb. N. C. 354). Defendant’s counsel, desiring to make use of the same affidavit to resist a motion now made by plaintiff to compel the examination of the defendant before trial, found that it was not on file, and that the plaintiff’s attorneys had no copy.
    Defendant’s attorney prepared an affidavit for plaintiff to sign and verify, stating the substance as he claimed of such previous affidavit, and to the following effect: that the plaintiff was a practising physician, the husband of plaintiff, that on the previous motion the affidavit alleged to have been made by him and now lost was used, and after argument handed to the judge of the court with other papers; ' that it was prepared in the interest of plaintiff, and in opposition to the defendant’s motion to set aside plaintiff’s proceedings ; that such affidavit among other things set forth that deponent was a physician, and as such for some time past had made insanity and diseases of the mind a specialty ; that he had been so related to defendant, and had been so much in her presence or society as to enable him to judge of her mental condition; and that he hacL thus satisfied himself that she had been and still was of unsound mind.
    On applying to Dr. Mason to verify such affidavit on behalf of defendant, he refused to do so.
    Defendant, then, on affidavits to the loss of the paper, and to information from plaintiff’s attorneys that the original affidavit referred to had been actually used on the motion, or handed to the court with the other papers, and that Dr. Mason refused on application to verify the proposed new affidavit, or to read it or hear it read, or to take it and refer it to his counsel, applied to the court and obtained an order appointing a referee to take the deposition of said Mason, and requiring him to 'appear before the referee for that purpose at such time as might be indicated by a subpoena to be duly served under the hand of the referee. The proposed witness appeared before the referee, and stated that many of the allegations of the proposed affidavit which he was asked to verify were false; and also that the facts he was asked to disclose in said affidavit were facts which he obtained from defendant as his patient, and which were necessary for him to obtain in order to treat her as his patient, and these facts witness refused to disclose unless so ordered by the court. He also submitted an affidavit which he was ready to swear to.
    The referee ruled that the witness must be sworn, and submit to examination on the points as to which his proposed affidavit was not satisfactory to the defendant’s counsel. The witness refused to be examined; he submitted Ms proposed affidavit, but declined to be examined or sworn- further than verifying its allegations.
    The material allegations of the .affidavit thus offered by plaintiff were, that deponent was a physician, the husband of plaintiff; that on the previous motion referred to, no affidavit of the deponent was used, or read, or referred to on the argument, or handed to the judge; that an affidavit of deponent was prepared in the interest of plaintiff and in opposition to such previous motion, and was in the bundle of affidavits prepared on behalf of plaintiff, which bundle was shown by courtesy to defendants’ counsel. But after consultation, and before the argument of the motion, and before the motion was called up for argument, it was determined not to use such affidavit, and it never was used. That deponent did not remember the precise language used in said affidavit, but recollected. the substance thereof. “ That whatever facts were therein stated with reference to the mental condition of the defendant, were information acquired by deponent in attending upon defendant as a physician in a professional capacity, and were necessary to enable deponent to prescribe for defendant. That deponant is advised by his counsel that he is not at liberty to disclose such information, and under the advice of his counsel declines so to do.”
    "Upon the papers showing this state of the proceedings, defendant obtained an order to show cause why Dr. Mason should not be punished as for contempt in not submitting to be sworn and examined.
    
      Chauncey B. Ripley, for the motion.
    I. This is a proper application under the Code (§ 401, subd. 7) to compel a witness to make an affidavit.
    II. The affidavit must be full and frank to answer the requirements of the Code (Fisk v. Chicago, &c. R. R. Co., 3 Abb. N. S. 433).
    
      III. The time for the adverse party to appear and object is on the motion when the affidavit is proposed to be read (Brooks v. Schultz, 5 Robt. 656).
    IV. As to the objection that the communication is privileged : 1st. We only ask the same facts sworn to in July, 1876, on á similar motion. 2nd. The privilege is that of the patient, and not of physician (Benjamin v. Coventry, 19 Wend. 353). The defendant, patient, waives the objection—the privilege—by making this application. If patient or client calls the physician or attorney, the privilege is thereby waived (14 Wend. 643 ; Phil, on Ev. 108).
    V. The adverse party cannot move to set aside proceedings for procuring such affidavit (Erie R. R. v. Champlain, 35 How. Pr. 73).
    VI. It is too late to take the position that no refusal has been made, after the proposed witness has appeared before the referee (35 How. Pr. 73).
    
      John V. B. Lewis (Lewis & Beecher, attorneys), opposed.
    Lawrence, J., held that the application must be granted. He accordingly granted an order that “the witness attend before the referee at such time and times as the referee may appoint, and make his deposition as required by the original order and subpoena heretofore served ; with $10 motion costs and $13 disbursements.”
    II. April, 1877. Motion to compel defendant to submit to examination before trial.
    The order which defendant had obtained requiring plaintiffs to show cause why her order for the examination of defendant before trial should not be set aside, then came on to be heard after Dr. Mason has appeared and submitted to examination as required. The defendant resisted the examination chiefly on the grounds disclosed by the examination of Dr. Mason, to the effect that he stated in his original affidavit “ that Mrs. Libbey, the defendant in this case, had been insane ; she had been confined in the asylum for twenty-two months. I have an idea, but am not sure, that something was said as to hereditary insanity. I don’t recall anything further in that affidavit.” He al§o stated that he knew of her being in the asylum, as a matter of general report; and that the insanity was hereditary was a matter of general report too in the family.
    
      A. B. Tappan and Chauncey B. Ripley (Ripley, attorney), in support of the motion,
    Insisted that as the object of the action was to charge real estate held by defendant with a trust, in favor of the plaintiff, created by the deceased husband of the defendant, and father of the plaintiff, and the object of the examination was to prove this parol trust, the examination was prohibited by section 399 of the Code.
    II. The application should be denied on the grounds stated in Schepmoes v. Bousson (1 Abb. N. C. 481).
    III. An examination of the pleadings shows that the action cannot be supported and should be dismissed. Hence, no examination is necessary.
    IV. In case of any doubt as to a clear case and clear right on the part of the party seeking the examination, and where it does not appear that the party whose examination is sought cannot be required to attend the trial, the court will defer the examination so that • all questions and suggestions may be then properly passed on.
    
      Lewis & Beecher, opposed.
    
      
       For the statute, see 2 R. S. 406, § 73; Oode of Pro. of 1877, § 834.
      The following are the rules of professional privilege as defined by the new Code of Civil Procedure, above cited :
      “§ 833. A clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs.
      “§ 834. A person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional'capacity, and which was necessary to enable him to act in that capacity.
      “§ 835. An attorney or counsellor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment.
      “ § 836. The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient, or the client,.”
    
    
      
       See 1 Abb. New Cas. 339, 340, note.
      
    
   Donohue, J.

On the fair statement of the papers as they stand, I must hold that the plaintiff alleges the defendant to be partially insane. If plaintiff is correct in this, and there is nothing to dispute it, the witness should be examined on the trial that the court may judge of that sanity.

Motion granted.  