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Cake v. Haight.

1900]

upper parts of this city. Indeed, as the proofs show, when defendant desired to consult his counsel with respect to the preparation of his case for trial he had been in the habit of returning each day to Jersey City after his consultations here were over. What possible reason, then, existed for his failure to return as usual to his residence in New Jersey on the afternoon of the 13th? None is disclosed, except that he preferred to remain in this city over night, as he actually did. His remaining was solely for his own pleasure, and not occasioned or prompted by any consideration affecting the approaching trial. The situation of the defendant, then, was such that when, on the day on which he was served, it became certain that his case would not be called, the occasion for his remaining ceased, and it became his duty to return to his place of sojourn in Jersey City. This

EXEMPTION OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS,-continued.

the service was made May 16th and the order to show cause why the service should not be set aside was granted June 5th.

Lederer v. Adams, 33 St. Rep. 799; 11 Supp. 481; 19 Civ. Pro. 294, aff'd 125 N. Y. 748.

Such waiver occurs when the party or witness does some act in the cause in reference to his appearance or defense.

Cole v. McClellan, 4 Hill, 59.

Stewart v. Howard, 15 Barb. 26.

Hardenbrook's Case, 8 Abb. Pr. 416.

Thus a person served with process when he is exempt therefrom waives his right to have the same set aside by making a general appearance in the action in which the service was made.

Chadwick v. Chase, 5 Week. Dig. 589.

Brett v. Brown, 13 Abb. Pr. (N. S.) 295.

Likewise, there is a waiver of the privilege where the person arrested, causes his attorney to serve notice of retainer in the cause and a demand of service of a copy of the complaint.

Stewart v. Howard, 15 Barb. 26.

A forfeiture of the privilege does not take place where a person served with a summons moved to have the same dismissed on the ground of its improper service, and for that purpose made and filed an affidavit stating the facts relied on to show the irregularity, and his attorneys obtained and served an order to show cause why the summons should not be dismissed and ordering the proceedings to be stayed and extending the defendant's

Special Term.

he neither did nor intended to do, and the conclusion to which I have come is that under the facts appearing here he had lost the protection of the rule he invokes at the time the service upon him was made. Considering the purpose of defendant's actual residence in New Jersey, he is not entitled to more than the rule in any case imperatively requires. To give it the least expansion in his favor would be a mockery of justice. It follows from what has been said that the motion should be denied.

Motion denied, with $10 costs.

EXEMPTION OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS,-continued.

time to answer 20 days, as such facts do not constitute such an appearance in the cause as to amount to a waiver of the service.

Prett v. Brown, 3 Abb. Pr. (N. S.) 295.

Pleading to the charge upon which a party to an action is arrested in violation of his privilege operates as a waiver of the exemption.

Randall v. Crandall, 6 Hill, 342.

The giving of bail does not waive the exemption from arrest.
Mackay v. Lewis, 7 Hun, 83.

But an earlier case holds that such privilege is waived by putting in bail.
Stewart v. Howard, 15 Barb. 26.

Corey v. Bolton.

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COREY v. BOLTON.

[31 Misc. 138; 97 St. Rep. 915; 63 Supp. 915.]

(Supreme Court, Appellate Term. March 26 1900.)

1. PHYSICIAN-PRIVILEGED COMMUNICATION-WAIVER-INFANTS. The word "patient," in Code Civ. Pro. § 834, providing that a physician shall not be allowed to disclose any information which he acquired in attending a patient, and section 836, providing that section 834 shall apply to any examination of a person as a witness, "unless the provisions thereof are expressly waived on the trial or examination by the patient," includes persons under disability, such as infancy, so that waiver may be made for them.

2. SAME.

The father and mother of an infant being his natural guardians and NOTE.-WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHY

SICIAN.

a. The statute.

b. In general.

Who may make waiver.

d. How waiver effected.

1. Testimony of client or patien..

2. Calling physician or attorney as witness.

3. In applications for insurance.
4. Subscribing witnesses.

a. The statute.

The progressive amendments to the statute, which have been evidently inspired by the difficulties arising in the cases in litigation and by the decisions, have supplanted many of the rules established by the cases except for the instances in which the rights of the parties were fixed by contract prior to the amendment.

Section 836 of the Code of Civil Procedure was the first statute upon this question of waiver. That was as follows:

"The last three sections apply to every examination of a person as a witness, unless the person confessing, the patient, or the client, as the case re

Appellate Term.

guardians of his person, may, for him, waive the privilege given by Code Civ. Pro. § 834, that a physcian shall not be allowed to disclose any information which he acquired in attending a patient, and the waiver may be made in an action to which the infant is not a party; and if the father, in an action by him for loss of the infant's services, cannot, because of his interest, waive the privilege, the mother, being present and making no objection to his waiver, will be presumed to have acquiesced therein and thus made it a valid waiver.

3. SAME.

[Mar.

A guardian of an infant, not being called on to do so, need not, before making the waiver, show that the infant will not be prejudiced by waiver of the infant's privilege that a physician shall not disclose any information acquired in attending a patient.

Scott, J., dissenting.

Appeal from city court of New York, general term.

Action by George Corey against William Bolton. From a judgment affirming a judgment for plaintiff, defendant appeals. Affirmed.

WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,continued.

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quires, is present or represented by counsel, and does not object to the testimony."

In 1877 the section was changed so as to read, "The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or the client."

In 1891 it was amended so as to require the waiver "upon the trial or examination" and permitting the personal representatives of a deceased person to make the waiver as to physicians and the executors named in a will of the decedent to make the waiver, when such will was in question.

In 1892 it was further amended by permitting such waiver to be made also by a surviving spouse, heir-at- law, next of kin, or any other person in interest and permitting an attorney who is a subscribing witness to a will to testify as to its preparation.

In 1893 a provision was added for the taking of the testimony of hospital physicians in actions for personal injuries before a referee.

In 1899 the following provision was added which overturns the rule established by the courts as to waivers in applications for life insurance. The decisions will, however, be useful in cases involving policies issued prior to the amendment.

1900]

Corey v. Bolton.

Argued before TRUAX, P. J., and DUGRO and SCOTT, JJ. A. Oldrin Salter, (Abel Crook, Counsel) for appellant.

Louis L. C. Benedict, for respondent.

DUGRO, J. Upon the trial of an action brought by a father to recover for the loss of the services of his infant son through negligence of the defendant, a physician who attended the boy was allowed to disclose, over defendant's objection, the information referred to in section 834 of the Code of Civil Procedure, Whether it was error to allow the disclosure is the main question upon which the result of this appeal depends. It appears that the infant was 17 years of age at the time of the trial, and that he and his mother had been witnesses for the plaintiff at the trial at a time in the day prior to the physician's testimony, and

WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,continued.

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"The waivers herein provided for must be made m open court, on the trial of the action, or proceeding, and a paper executed by a party prior to the trial, providing for such waiver shall be insufficient as such a waiver. But the attorneys for the respective parties may, prior to the trial, stipulate for such waiver, and the same shall be sufficient therefor."

b. In general.

The waiver of the seal of secrecy from professional information is not contrary to public policy.

Dougherty v. Metropolitan Life Ins. Co. 87 Hun, 15; 67 St. Rep. 489; 33 Supp. 873.

The privilege is that of the patient and not of the physician and after the patient has waived it the physician can be compelled to disclose.

Zimmer v. Third Ave. R. Co., 36 App. Div. 265; 89 St. Rep. 308; 55 Supp. 308.

The client having directed her attorney to deliver a deed to a third person thereby waives any privilege to object to the attorney testifying to that fact.

Rosseau v. Bleau, 131 N. Y. 177; 30 N. E. 52.

The privilege may be waived by the party who consulted the attorney, although the interest in the subject matter respecting which the confiden

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