
    Sarah J. Trieber, as Executrix, etc., of William Trieber, Deceased, Respondent, v. New York and Queens County Railway Company, Appellant.
    Second Department,
    March 15, 1912.
    Damages— action to recover for death caused by negligence—verdict not excessive —practice —motion to set aside assessment of damages — discretion — appeal—review of discretion — evidence not going to damages — privilege — communications made to physician — waiver.
    A verdict of $15,000 for the death of aman sixty years of age who had been earning $30 a week as an architectural draftsman and had been doing other business and who left surviving a widow and two grown daughters, one of whom lived with her parents, though large, is not excessive.
    Where after judgment absolute for the plaintiff has been rendered by the Court of Appeals on the defendant’s stipulation and subsequently the damages of the plaintiff have been assessed under section 194 of the Code of Civil Procedure, it is improper for the defendant to move to set aside the verdict on the judge’s minutes and for a new trial under section 999 of the Code of Civil Procedure.
    
      It seems, however, that such motion may be treated as one to set aside the inquisition and may be considered by the court in its discretion.
    Such motion to set aside the inquisition will not be granted merely for the admission or exclusion of evidence unless it appear that the error defeated the ends of justice.
    The discretion of the trial court in granting or denying a motion to set aside such inquisition is reviewable by the Appellate Division, but not by the Court of Appeals.
    
      An order refusing to set aside the inquisition will be affirmed on appeal, where no improper evidence was admitted on the question of damages.
    The privilege of communications made by a patient to his physician in his professional capacity created by section 834 of the Code of Civil Procedure is not for the benefit of the physician, but for that of the patient, and may be waived by him, or, after his death, by his personal representative.
    The error of a trial court in refusing to compel a physician to disclose communications received from a patient is not reversible error, even if there has been an express waiver on behalf of the patient, unless the evidence sought was material to the issues.
    On an inquisition to assess damages for a death caused by negligence it is not reversible error for the court to refuse to allow the decedent’s physician to be questioned by the defendant as to the decedent’s physical condition five or six years before the accident, where the form of the question- was not specific enough to indicate that it was sought to show that he was permanently injured in health.
    Jbnks, P. J., dissented, with opinion.
    Appeal by the defendant, The New York and Queens County Railway Company, from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens on the 15th day of June, 1911, denying the defendant’s motion to set aside a verdict of $15,000 in favor of the plaintiff and for a new trial.
    
      G. B. Hanavan [Bayard H. Ames, Walter Henry Wood and James L. Quackenbush with him on the brief], for the appellant.
    
      Aaron P. Jetmore [Frederick J. Gardenhire with him on the brief], for the respondent.
   Carr, J.:

The plaintiff has recovered judgment in the sum of $15,000 damages-and costs, etc., making in all $18,626.16. The action was brought to recover damages for the death of plaintiff’s husband through the negligence of the defendant. On the first trial there was a judgment for the defendant; on appeal to this court this judgment was reversed and a new trial granted (134 App. Div. 661). The defendant gave a stipulation for judgment absolute and appealed to the Court of Appeals, where ■ the judgment of this court was affirmed (201 N. Y. 520). The case then came back to Trial Term for an assessment of damages under section 194 of the Code of Civil Procedure. The decedent was sixty years of age; he left a widow and two grown-up daughters, one of whom was married, the other living at home with the parents. He was an architectural draftsman, earning $30 a week from the city of New York and doing a little outside business. According to the plaintiff’s proofs he was in ordinary health but slightly lame in the left leg. The defendant attempted to prove that he was in, poor health and afflicted or threatened with a paralysis or locomotor ataxia. The jury awarded damages of $15,000. It was a large verdict and the trial court so thought. It was not so large as to indicate passion or prejudice, and we should not attempt to disturb it on that ground alone. We have sustained verdicts as large under similar circumstances. (Boyce v. New York City Railway Co., 126 App. Div. 248, 253.) The defendant moved to set aside the verdict on the judge’s minutes and for a new trial under section 999 of. the Code of Civil Procedure. This practice was not proper on an inquisition of damages. (Bossout v. Rome, W. & O. R. R. Co., 131 N. Y. 37.) The court, however, treated the motion as one to set aside the inquisition, and as such one addressed to its discretion and after consideration denied the same. For this practice there is precedent, although the practice under such circumstances is not prescribed expressly by the Code of Civil Procedure. As pointed out in Bossout v. Rome, W. & O. R. R. Co. (supra), such a motion is addressed to the discretion of the court and is to be determined according to the ends of justice, and it will not be granted as a new trial would be for the mere admission of improper evidence nor merely because competent evidence was excluded. It must appear that the admission or exclusion of such evidence defeated the ends of justice. (Ward v. Haight, 3 Johns. Cas. 80; Sharp v. Dusenbury, 2 id. 117.) The exercise of discretion by the court in granting or denying the motion to set aside the inquisition is reviewable in this court although not reviewable in the Court of Appeals. (Bossout v. Rome, W. & O. R. R. Co., supra; Bassett v. French, 155 N. Y. 46; Lewin v. Lehigh Valley R. R. Co., 169 id. 336.) With the record of the inquisition before us we are unable to find that any improper evidence was admitted on the question of damages. It is claimed, however, that competent and proper evidence offered by the defendant was excluded. Several instances of such exclusion are cited, but only one of them is serious enough for present consideration. The defendant called one Dr. Fitch, who had attended the decedent some five or six years before the accident. He was questioned by the defendant’s counsel as follows: “You have testified that in 1902 or 1903 you treated Mr. Trieber; will you state what you treated him for at that time ? ” The witness refused to answer, claiming that it would be improper to disclose information acquired by him in his professional capacity. The court declined to compel the witness to answer unless there was an express waiver by the plaintiff. While no formal objection was made by the plaintiff, there was at the same time no express waiver made, and the question remained unanswered. It is true that the privilege claimed by the physician did not belong to him but to the patient, and could have been waived by the personal representative, the plaintiff. (Code Civ. Proc. §§ 834, 836.) At the same time, though technically the physician was claiming a right which he did not possess, yet a refusal by the court to compel him to answer would not, even on a trial where there had been an express waiver, be a reversible error unless it appeared that the evidence sought was material to the question to be determined. (Zimmer v. Third Avenue R. R. Co., No. 1, 36 App. Div. 265, 272.) Here the question related to a condition existing some five or six years before the accident. The question was not specific enough to appear material on its face. If it was sought to show that the decedent was then permanently impaired in health, the question should have so indicated. As the question was put, the answer might disclose something of no importance whatever to the question of damages. To say that the failure of the court to compel the witness to answer this question was against the ends of justice on this inquisition of damages would require some speculation as to what the answer would have been, and we are not at liberty to resort to speculation in order to reverse the decision of the court which presided over the inquisition. Moreover, there was here no express waiver. Some colloquy took place between the respective counsel, but it is clear that the plaintiff and her counsel did not intend to waive the provision of section 834 of the Code of Civil Procedure.

The order must he affirmed, with costs.

Burr, Thomas and Woodward, JJ., concurred; Jenks, P. J., read for reversal.

Jenks, P. J. (dissenting):

I dissent. I think that the learned court fell into reversible error when it dealt with the attempt of the defendant to elicit the testimony of the physician, as detailed in the opinion of my brother Carr. The privilege asserted by the physician was that of his patient (Johnson v. Johnson, 14 Wend. 637; Zimmer v. Third Ave. R. R. Co., No. 1, 36 App. Div. 272), and in this case of the representatives of the patient. I think, therefore, that the assertion of privilege should have been made at least ultimately by them (Wigm. Ev. § 2386), and that they should not have been permitted practically to stand at gaze by assertion that they had no privilege. The witness did. not refuse to answer as to any specific ailment, but refused to name the ailment that required his professional services, and thereby indicated that his refusal was absolute and general, resting upon the professional privilege itself. . I think that in view of this attitude the defendant was not required to go forward to question the witness as to the specific ailment which the defendant had in mind. There is no indication that the disposition of the court of the inquiry could do no harm to the defendant, as was the case in Roche v. Nason (185 N. Y. 138) and in Zimmer v. Third Ave. R. R. Co., No. 1 (supra). Yet, before we can disregard the rejection of competent evidence, it should appear that such rejection could not have legitimately affected the result. (Baylies N. T. & Ap. 341, 342.) Even if the learned court had pressed the plaintiff to an assertion of the privilege, which had been sustained, it would not have been harmful, for no inference as to the facts thereby excluded could have been legitimately drawn. (Wigm. Ev. supra, and cases cited.)

Order affirmed, with costs.  