
    James Brown, Resp’t v. The Rome, Watertown and Ogdensburgh R. R. Co., App’
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July, 1887.)
    
    • Evidence—Testimony of person duly authorized to practice physio-OR SURGERY—WHAT INCLUDED UNDER CODE ClV. PRO., § 834.
    It is provided by Code Civ. Pro., § 834, that a person duly authorized to-practice physic or surgery 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. Held, that this section did not prohibit a physician from disclosing information which, though acquired in attending a patient was not necessary to enable him to-act in that capacity.
    Appeal from a judgment entered upon the verdict of a. jury rendered at a circuit in St. Lawrence county, and from an order denying a motion for a new trial upon the minutes of the trial judge.
    
      Edmund B. Wynn, for app’lt; George W. Hurlbut and Thomas Spratt, for resp’t
   Bockes, J.

A case was made for the jury on the evidence, as we think, as well on the question as to the defendant’s-liability for negligence as also on the question of contributory negligence on the part of the plaintiff. The motion for non-suit was properly .denied, and no exception was taken on the giving of the case to the jury. There were several rulings by the court during the progress of the trial excepted to by the defendant on matter of evidence, one of which only is deemed of serious moment.

It was proved that the plaintiff approached the crossing where the injury occuréd on a descending grade in the highway. Dr. Setin, who attended the plaintiff professionally immediately following' the injury, was examined as a witness for the defendant, and testified that he visited the-plaintiff professionally three times. The defendant then offered to show by the witness that on the third visit the-plaintiff stated to witness that when coming down the hill he heard persons hallooing to him, and saw a man swing his hat, but didn’t think where he was until the train was right on him. This evidence was excluded, against exception, on the ground that witness was a physician, and as a physician he had the conversation with plaintiff, which it was proposed to prove, in a confidential relation, and witness was incompetent to give the evidence under section 834 of the Code of Civil Procedure.

In this ruling there was error. The materialty of the evidence offered is unquestioned. It bore directly on the subject of plaintiff’s negligence, and was therefore pertinent to the case. The section of the Code on which its exclusion was based is as follows: “'Section 834. A person duly authorized to practice physic or surgery 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.” This is substantially a re-enactment of the Revised Statutes. 2 R. S., m. p. 406, § 73. Effect must be given to the last clause of this section. This point was marked and inferentially decided in Hewitt v. Prime (21 Wend., 79), a case considered under the provision of the Revised Statutes, as was, also, Edington v. Ætna Life Insurance Company (77 N. Y., 564). In this case Judge Earl says: “Before information can be excluded under this statute it must appear that it was such as the physician acquired in some way while professionally attending a patient, and it must also be such as was necessary to enable him to prescribe as a physician, or to do some act as a surgeon. It is not sufficient to authorize the exclusion that the physician acquired the information while attending his patient, but it must be the necessary information mentioned. If the physician has acquired any information which was not necessary to enable him to prescribe or to act as a surgeon, such information he can be. compelled to disclose, although he acquired it while attending the patient, and before the exclusion is authorized the facts must in some way appear upon which such exclusion can be justified.”

The rule is the same under the. Code, and it has been so-explicitly held. Pierson v. The People, 79 N. Y., 424, 432, 433, 434. There is nothing to the contrary in Grattan v. Metropolitan Life Insurance Company (80 N. Y., 281),and in Renihan v. Dennin, (103 N. Y., 573), it was again laid down that the exclusion extended only to such information as was necessary to enable the physician to act. It is entirely plain that the evidence here excluded was not of such a character. It had no relation whatever to the-plaintiff’s condition, and was in no respect necessary to-en able the physician to act in his professional capacity. Because of the exclusion of the evidence as offered there must be a new trial.

The judgment and order appealed from should be reversed, new trial ordered, costs to abide event.

Judgment and order reversed and new trial granted, costs to abide event.

Learned, P. J., and Landon, J.  