7 N.Y.S. 855 | N.Y. Sup. Ct. | 1889
In view of the decision of the court of appeals in Renihan v. Dennin, 103 N. Y. 573, 9 N. E. Rep. 320, but little need be said in this case.
Applying to the case, however, the doctrine of Reniñan v. JDennin, supra, the foundation of the contest falls. It was there expressly held that the provisions of section 834 of the Code of Civil Procedure, to the effect 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,” are applicable where the physician is called as a witness in proceedings for the probate of a will. This testimony, therefore, should not be considered, except, possibly, so far as be narrated the incident of Mr. Graham’s call upon him, in company with Charles Connor, and the advice which he says he then gave as to the impossibility of executing a will. This was perhaps a fact to be considered on the question of undue influence. It is proper to say, however, that the physician’s version of that interview is denied by Messrs. Graham and Connor, who both testify that the