
    Third Department,
    July, 1915.
    In the Matter of Nelson S. Gates, an Alleged Incompetent Person, Appellant. Elizabeth Souler, Respondent.
    
      Physician — witness —privilege — incompetent person.
    
    This is an appeal by the alleged incompetent from an order of the Supreme Court, made at Special Term and entered in Columbia county clerk’s office November 25, 1914, affirming the findings of an inquisition de lunático inquirendo, and from other orders made in the matter, two entered on the 27th day of November, 1914, and one on the 19th day of December, 1914.
   Per Curiam:

It was error to permit the defendant’s personal physician to testify as to the competency of his patient. Clearly it was indelicate for a physician in attendance upon a patient to permit himself to be hired by another and go and make an examination of the patient for the pur. pose of testifying against him. In our judgment it wa s not only indelicate, but in violation of the privilege given to the patient under section 834 of the Code of Civil Procedure. It was also error to permit a physician, in forming his opinion as to the competency of the appellant, to base it in part upon his understanding and recollection of the evidence given by the petitioner’s witnesses in court. If the petitioner wished to avail himself of anything brought out by the examination, the alleged fact should have been incorporated in a hypothetical question. The doctor, by the question put to him, was called upon to form a conclusion as to what the evidence had established. If the ease was free from doubt upon the facts, it would not be necessary to reverse the inquisition for these errors; but under all the circumstances we feel that justice will be promoted by a new hearing where the facts may be more fully shown. We conclude, therefore, that the inquisition and order are not fairly sustained by the evidence, and in the interest of justice they are set aside and a new hearing granted, without costs. All concurred. Order appealed from reversed and inspection set aside.  