
    George Henry, Resp’t, v. The New York, Lake Erie & Western Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 19, 1890.
    
    1. Evidence — Physicians—Code Civ. Pro., § 834.
    Testimony of a physician who examined plaintiff at the request of his attending physician, as to the result of such examination is not incompetent under § 834 of the Code, where it does not appear that he was requested or expected to treat or prescribe for plaintiff, or that he did either. To bring the case within the statute it must appear that the relation of physician and patient existed, and that the information obtained'was necessary to enable the physician to act in that capacity.
    3. Same.
    It is not the duty of the party offering such testimony to show that the relation of physician and patient did not exist; but it is the duty of the party objecting to support his objection by proof of facts necessary to bring the case within the definition on which it is based.
    Appeal from a judgment entered on the verdict of a jury, at the Chautauqua circuit, and from an order denying the defendant’s ¡motion for a new trial on the minutes.
    
      J. H. Stevens, for app’lt; Ansley & Davie, for resp’t
   Dwight, P. J.

The single exception taken by the defendant ¡in this case must be fatal to the judgment. The action was fora ¡personal injury alleged to have been sustained by the plaintiff when a passenger on the defendant’s road. The question litigated was of the existence and extent of the injury; the principal injury complained of being a broken rib. The defendant called as a witness a physician and surgeon, Dr. Wilcox, who testified that, some two weeks after the accident, the attending physician of the plaintiff brought the latter to the office of the witness, and asked him to examine the plaintiff and see what was the matter with him, and that he made such examination, and among other things examined his ribs. He was thereupon asked “ did you find any fractured rib ? ”

To this question the plaintiff objected as incompetent under § 884 of the Code. The objection was sustained and the defendant excepted.

We think the question was not shown to be within the exclusion of the statute referred to. That statute is specific in its definition of the matters which the physician is forbidden to disclose. The exclusion is confined to “information which he acquired in attending a patient in a professional capacity, and which was necessary.to enable him to act in that capacity.” It is clear that to bring the case within the provision of the statute it must appear that the relation of physician and patient existed between the examining physician and the person examined; and even that is not sufficient; it must also appear that the information obtained was necessary to enable the physician to act in that capacity. 'There is nothing in this case to show that Dr. Wilcox was requested or expected to treat or prescribe for the plaintiff, nor to advise in respect to his treatment, nor that he did either. So far as appears, the purpose of procuring the examination was to qualify, or, as counsel for the defendant' suggests, to' disqualify the physician as a witness on the trial of the plaintiff’s action. The error of the-learned court at the circuit, was in holding that it was the duty of the defendant, offering the testimony, to show that the relation of physician and patient did not exist, and, therefore, that the objection did not apply. Clearly it was incumbent upon the plaintiff to support his objection by proof of the facts necessary to bring the case within the definition upon which the objection was based.

For the error of the exclusion of the testimony of Dr. Wilcox, as the case stood, the judgment and order must be reversed and a new trial granted.

Macomber and Corlett, JJ., concur.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event  