
    Grossman v. Supreme Lodge of Knights and Ladies of Honor.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Insurance—Actions—Evidence—Declarations.
    In an action on a certificate of indemnity, alleged to have been procured through fraudulent misrepresentations of the assured, a witness stated that she had known deceased four or five years prior to her death, and had “long ago” conversed with her about her health. Held, that the evidence was incompetent to prove declarations by decedent, as being too remote from the time of her examination by the physician of the insurer.
    3. Witness—Competency—Physicians.
    Physicians who state that they made the rounds of a hospital with the attending physician, “out of curiosity, ” and “assisted him in making the examination of” deceased, and “partly attended” her, but did not have charge of her, and had charge of the different wards with the attending physician, cannot testify as to decedent’s condition under Code Civil Proc. N. Y. 1 834, which provides that no person duly authorized to practice physic or surgery may disclose any information acquired in attending a patient in a professional capacity, and necessary to enable him to act in that capacity.
    8. Appeal—Harmless Error.
    Where the circumstances attending the admission of deceased, to the benefits of a certificate of insurance were fully shown by the testimony of the secretary of the insurer, a refusal to admit in evidence the minutes of a meeting of the insurer at the same time was not erroneous.
    Appeal from circuit; court, New York county.
    Action by Fritz Grossman against the Supreme Lodge of Knights and Ladies of Honor, as beneficiary under a certificate issued by defendant to Mina Grossman (deceased) upon her life. On the trial at circuit the jury found for the plaintiff, and defendant moved for a new trial. The motion was denied, and defendant appeals therefrom, and from the judgment entered upon the verdict. For report upon an appeal from an order denying an application to show cause why the case on appeal should not be resettled, see 5 N. Y. Supp. 122.
    Argued before Van Brunt, P. J., and Bartlett, J.
    
      Henry F. Lippold, for appellant. Alfred S techier, for respondent.
   Bartlett, J.

We find no error in this record which calls for a reversal of the judgment. The action was brought to recover $1,000, upon a certificate issued by the defendant to Mina Grossman for the benefit of the plaintiff, her husband, in case of her death. The certificate declared that Mina Grossman, a member of the Oriental Lodge of the Order of Knights and Ladies of Honor, was entitled to all the rights and privileges of membership in the order, and to participate in its relief fund to the amount of $1,000, which sum at her death should be paid to her husband, Fritz Grossman. The complaint alleged that on February 7, 1885, the instrument was executed and delivered for a valuable consideration to the wife of the plaintiff, for the plaintiff’s benefit; that she died on August 28, 1885, being at the time a member of the said Oriental Lodge in good standing; and that while she was a member thereof she did in every particular faithfully comply with all the rules, regulations, and requirements of the order. The answer, alleged that Mina Grossman was illegally admitted to membership in the order of Knights and Ladies of Honor, and also that she was guilty of a fraudulent concealment of facts and of misrepresentations as to her health upon her medical examination preparatory to admission. The defendant relied chiefly upon the latter defense, and sought to show that the deceased falsely answered “Ho" to three questions: First, as to whether she had had any serious illness, local disease, or personal injury; second, as to whether she had ever had any palpitation of the heart; and, third, as to whether she had ever undergone any surgical operation. The proof was mainly directed to these points, and the jury found in favor of the plaintiff. Ho exception was taken to the main portion of the charge, and the questions requiring notice on this appeal relate solely to the exclusion of certain evidence, and the denial of the motion to dismiss the complaint or direct a verdict for the defendant.

The first ruling of which the appellant complains is the refusal of the court to admit in evidence the minutes of the meeting of the Oriental Lodge at the time Mrs. Grossman was admitted to membership. The exclusion of these minutes was of no consequence, in view of the fact that the circumstances attending the admission of the deceased into the order were fully shown by the subsequent testimony of one Hermann Gerth, the secretary of the lodge.

The next exception argued in the brief for the appellant relates to the testimony of Charlotta List. This lady testified that she had known Mrs. Gross-man four or five years prior to her death, and remembered her being in the German Hospital, but could not say when it was, except that it was long ago. Two months after having visited her i n the hospital, the witness saw Mrs. Gross-man in the street, and talked with her about her health. The defendant sought to prove what Mrs. Grossman said on that occasion, but the evidence was objected to and excluded. There was no error in this ruling. The testimony of the witness indicated that the conversation to which she referred had taken place some years before Mrs. Grossman’s death. She spoke of the time as “long ago,” just after having said that she had known the deceased four or five years. To render admissible the declarations of one whose life has been insured for the benefit of another, as to his state of health, made prior to the examination by the physician of the insurer, such declarations must have been made at a period not remote from the time of examination. Swift v. Insurance Co., 63 N. Y. 186, 191. The admissions sought to be proved in the case at bar were too far distant in point of time.. If, on the other hand, it is claimed that the interview occurred after the issue of the certificate, the declarations of the deceased were equally inadmissible; The acts or declarations of a person whose life is insured for the benefit of another, where those acts or declarations occur after the policy has been issued, and are not violative of any of its conditions, cannot be proved to bind the beneficiary. Fitch v. Insurance Co., 59 N. Y. 557, 573.

Two physicians, Dr. Joseph Holl and Dr. Gustavos Schlegel, were called by the defendant to testify as to what occurred at the German Hospital when Mrs. Grossman was a patient there. Dr. Holl saw her at the hospital in the summer of 1885, in company with a Dr. Wolf, who was the attending physician. The defendant endeavored to prove by him what he then found to be the condition of the lady’s health, but the court held the witness to be incompetent to testify on this subject, under section 834 of the Code of Civil Procedure. The correctness of this ruling is assailed on the ground that Dr, Holl was neither the attending physician nor his assistant, and that no relation of doctor and patient existed between him and the deceased. The testimony of the doctor as to his functions at the time he saw Mrs. Grossman is somewhat contradictory. He said that he and Dr. Wolf made the rounds of the hospital together, and generally examined the eases together, but that he was not the physician attending Mrs. Grossman, or prescribing for her. “I went there just out of curiosity, to acquire information in interesting cases, ” said the witness. “I went with Dr. Wolf, who was the attending physician. We generally tried to confirm diagnosis. I went there to find out the condition of the patient, and the ailments.” At the very beginning of his examination as to his competency to testify, however, the witness had stated to the court, “I partly attended her;” and near the end of his examination he stated that when Dr. Wolf went to examine the patient he accompanied him, “and assisted him in making the examination.” He also said that he was a physician in the hospital, and had charge of the different wards with Dr. Wolf. Upon the statements of the witness, to the effect that in association with Dr. Wolf he had charge of the different wards in the hospital; that he assisted Dr. Wolf in making the particular examination the result of which he was asked to disclose; and that he partly attended the patient,—we think the court properly held that the witness was disqualified. “To bring the case within the statute, ” says Earl, J., in Renihan v. Dennin, 103 N. Y. 573, 579, 9 N. E. Rep. 320, “it is sufficient that the person attended as a physician upon the patient, and obtained his information in that capacity.” Whether the witness was actuated by curiosity or a higher motive makes no difference. His own admission that he attended the deceased, although.he qualifies the statement by the use of the adverb “partly,” suffices to establish the existence of the professional relation which debars him from disclosing what he learned of her condition under the circumstances. Like questions to Dr. Schlegel were also properly excluded, for this witness also said that he attended Mrs. Grossman with another physician, although he did not have charge of her. ■Such attendance brought him within the disqualification of the statute. There was no such preponderance of evidence in the case as to require or justify its withdrawal from the jury, and the motion to dismiss the complaint or direct a verdict for the defendant was therefore properly denied. The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs.  