
    Mary McK. Enright, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      - Negligence—application by the defendant to take the testimony of the attending-physician of the plaintiff— the court will not-anticipate a possible condition on the trial which would make it competent— testimony of the plaintiff’s physician as toiler declarations concerning the circumstances of tlw accident.
    
    Upon an application made by the defendant, in an action brought to recover damages for personal injuries, to take the testimony of the plaintiff’s attending physician as to what took place at a consultation between him and another physician relative to the condition of the plaintiff and as to her statements in regard to the circumstances under which the injury was received, the court will not anticipate a condition of the evidence on the trial which will make the physician’s testimony competent, especially where the plaintiff stipulates not to call as a witness-on the trial the physician with whom the party sought to be examined- had the consultation.
    
      Quaere, whether the incompetency of the - attending physician to testify to the statements made by the plaintiff to him at the time that he was attending her, does not extend to statements concerning the manner in which the injury was received.
    Appeal by the defendant,. The Brooklyn Heights Railroad Company, from an order of the Supreme, Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of February, 1898, denying the defendant’s .motion for the issue of a commission to take the testimony of Dr. Peter A. E. Boetzkes in the above-entitled action.
    
      John L. Wells, for the appellant.
    
      Albridge C. Smith, for the respondent.
   Per Curiam :

This is an application to take the testimony of Dr. Peter A. E. Boetzkes, a physician, upon commission. The action is to recover damages for injuries claimed to have been .sustained .through .the negligence of the defendant. Boetzkes was the attending physician of the plaintiff, and. the affidavit states that the defendant desires the physician’s testimony in respect of what took place between himself and Dr. McNaughton at the time of the consultation between them respecting the condition of the plaintiff; also in respéct to certain statements made b.y the plaintiff to this physician concerning the circumstances under which, the injury was received and the number of times the physician attended her. It cannot be very material as to the number of times the physician attended the plaintiff, as it is not a subject-matter of much dispute. It is quite clear that the physician may not testify to the statements made by the plaintiff to him at the time he was treating her. It is also quite doubtful if this does not embrace statements concerning how the injury was received.

The court below denied the application on the ground of the physician’s incompetency to testify, and we agree with it that the court may not anticipate a condition which would make his testimony competent.

Upon the oral argument defendant’s counsel limited his range of inquiry to what transpired at the consultation, and respecting the plaintiff’s prior condition, claiming that he was entitled to this much in view of the fact that Dr. IVIeYaughton would be called,, and thereby open the door so as to make the witness competent to-testify. The plaintiff’s counsel, in answer to this, stipulates that he will not call Dr. IVIeYaughton with reference to the only consultation he had with the witness proposed to be examined. It would, therefore, seem as if the case was not sufficient to call for the issuing of a commission to take his testimony.

The order should, therefore, be affirmed, but, in view of the stipulation, without costs.

All concurred.

Order affirmed, without costs, upon plaintiff’s filing the stipulation mentioned in memorandum per curiam.  