29 N.Y. St. Rep. 533 | N.Y. Sur. Ct. | 1890
Contestant’s counsel excepted to the ruling of the assistant, to whom this proceeding
The rule prohibiting physicians from disclosing information obtained by them from their patients, was the same under the Revised Statutes. Nevertheless, it was held in Allen v. The Public Administrator, 1 Bradf. 221, that testamentary cases were not within the reason and intention of the statute, and if covered by its letter, then the decease of the party put it beyond possibility to assert the privilege, and if still, from reasons of public policy, the court felt bound to extend and keep alive the privilege, it would not be done any further than was consistent with justice and good morals. This rule continued to be followed in probate cases until the decision in Renihan v. Dennin, 103 N. Y. 573. In that case the Court of Appeals held that the fact that the evidence offered was in a probate proceeding did not make the application of section 834 of the Code less operative; and at the close of the opinion Judge Earl said : “ It is probably true that the statute, as we feel obliged to construe it, will work considerable mischief. In testamentary cases, where the contest relates to the competency of the testator, it will exclude evidence of physicians, which is generally most important and decisive. . . . . The remedy is with the legislature and not with the courts.”
Since that decision, the practice of this court has been to ask the physician, when an objection was
As the Court of Appeals acknowledges that the rule laid down in Renihan v. Dennin is one, which will exclude important testimony in a probate proceeding, and which the court invokes the legislature by its action to make admissible, I cannot believe that the General Term, in the Matter, of Darragh, intended to exclude the testimony of a physician, which he, on his oath, stated was not necessary for him to act in his professional capacity. Hence, I hold that the exclusion of the information obtained by Dr. Densmore, under these circumstances, to be error, and I direct that the case be sent back to the assistant to take any testimony of the witness Densmore which is admissible under the rule I have here laid down.
The suggestion by contestant’s counsel, that it was