
    Mae Weil, Appellant, v. Sigmund Weil, Respondent.
    First Department,
    June 28, 1912.
    Husband and wife.— annulment 'Of marriage—insufficient evidence — evidence — privileged communications with physician — failure of defendant to object.
    Action for the annulment of a marriage dismissed because there was no legal evidence of the existence of the disability of which plaintiff complains.
    The prohibition against a physician disclosing information acquired in a professional capacity while attending a patient is absolute unless . expressly waived on the trial by the patient.
    It is of no consequence that the defendant was not present to object to incompetent evidence given by his physician.
    Appeal by the plaintiff, Mae Weil, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York- on the 19th day of .February, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint in an action to annul a marriage, and also from an order entered in said clerk’s office on the 4th day. of March, 1912, denying the plaintiff’s motion for a new trial or for leave to submit further proof.
    
      David C. Myers, for the appellant.
    No appearance for the respondent.
   Scott, J.:

This is an uncontested action for the annulment; of a marriage. After hearing the evidence submitted by the plaintiff, the justice presiding at Special Term made an order in the “short form” now authorized by section 767 of the Code of Civil Procedure, as amended by chapter 368 of the Laws of 1911, dismissing the action. From this plaintiff appeals treating it as a judgment. While we are not convinced that the action should have been dismissed for the reason given by the justice at the close of the testimony, we are of opinion that the dismissal was right because there was no legal evidence of the existence of the disability of which plaintiff complains. There was evidence given by a physician, but this was clearly incompetent and should' not have been received. Section 834 of the Code of Civil Procedure provides that a physician “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.” That is precisely what the physician was allowed to do in the present case. It is of no consequence that the defendant- was not present to object to the evidence. The Code does not provide that such evidence may be received if not objected to. The prohibition is absolute that the physician shall not be allowed to testify, and it remains effective unless the provisions are expressly waived on the trial by the patient. (Code Civ. Proc. § 836.) The court should have refused to receive the evidence, and, if it was -received inadvertently, should have disregarded it. If it was disregarded there was no evidence, in the case to uphold the allegations of the complaint. The order was right and is affirmed.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Order affirmed. Order to be settled, on notice.  