involved the validity of a will, the court of appeals reiterated its ruling as to the impossibility of receiving a physician's testimony at all after the patient's death; recognizing and commenting upon the inconvenience of the rule in testamentary cases and in actions upon life insurance policies. The decision in this case in 1886, following the Westover Case in 1885, doubtless led to the amendment of section 836 in 1892, permitting the waiver to be made in certain cases by specified personal representatives of a decedent. These cases, and numerous others that might be cited, serve to demonstrate the jealous care with which the courts of this state have enforced the letter of the statute, leaving to the legislature the determination of the cir cumstances under which a physician's evidence may be received; never by any chance relaxing the strictest rule of exclusion within the language of the statute, save in a single instance, when, in a criminal case, a physician who had attended a murdered man was permitted to testify against his murderer. Pierson v. People, 79 N. Y. 424. As was pointed out in Grattan v. Insurance Co., supra, this exception to the general rule was recognized as one proper to be made, in accordance with the general principle which makes the safety of the citizen the paramount law of the land. It furnishes no argument for a widening of the rule in civil actions. The statute makes no provision for a waiver in behalf of an infant by a parent or guardian, and no such waiver can be effectively made unless there be something in the relation of a parent to his child, or a guardian to his ward, which implies the authority to act for the child or ward in making such a waiver. A father is for certain purposes the natural guardian of his son's person, but the power and authority, even over the person, are far from being unlimited. The fundamental idea underlying all guardianships is that the state owes to the infant the duty of protection, and the guardian is but the agent or instrument of the state in fulfilling that duty. The relation of a guardian to his ward-even that of a natural guardian-is created solely for the benefit of the ward, and not at all for the benefit of the guardian. It implies the possession

Appellate Term.

by the guardian of power to do that which will be beneficial to the ward, but carries with it no implication of power to do anything by virtue of the relation of guardian which will benefit the guardian alone in his individual capacity. In other words, a man cannot do an act as guardian which he could not do if he were not guardian, if the result of that act will be for his own benefit alone. The office of guardian carries no such power with it. If this was the son's action for damages, and his attorney or his guardian ad litem sought to waive the privilege in his behalf, and for his benefit, a different question would be presented, which it is not necessary to determine here. The action is not the son's, but the father's. It is prosecuted by the father, not in his son's right, but in his own; and its fruits are to be enjoyed by him alone, without any legal right to participation therein by the son. So far as this action is concerned, he is not his son's guardian, and stands towards him in no other or better position than a stranger. In fact, he stands in precisely the same position as would a master to whom the boy had been indentured, and it would scarcely be seriously contended in an action by such a master for loss of the services of his apprentice that the master could, under the statute, take the boy's place, to waive the privilege. It may be that the plaintiff will be inconvenienced by losing the testimony of the physician, but that argument cannot be allowed to defeat the operation of a plain and peremptory statutory disqualification. The plaintiffs in Westover v. Insurance Co. and other cases above cited were at least as much inconvenienced. Much greater inconvenience would be likely to result if we were to attempt by strained and forced construction to extend the exceptions to the prohibition of the statute beyond the strict letter of the law; for, as was said in Balguy v. Broadhurst, 1 Sim. (N. S.) 111, "I am sure that it is most inconvenient to have a rule laid down, and the courts struggling to avoid it." That the defendant was entitled to object to the admission of the evidence is decided in the Westover Case, supra. The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Wilgus v. Wilkinson.

WILGUS v. WILKINSON.

[50 App. Div. 1; 97 St. Rep. 517; 63 Supp. 517.]

(Supreme Court, Appellate Division, Fourth Department. March 27, 1900.)

1. JUSTICES OF THE PEACE-ACTIONS INVOLVING TITLE TO REAL PROPERTY-REMOVAL TO SUPREME COURT-PLEADING.

Code Civ. Pro. § 2957, provides that on removal of an action involving title to real property from a justice's court to the supreme court, the plaintiff must complain for the same cause of action only. The complaint in trespass before a justice alleged that defendant's cattle trespassed on lends rented and in possession of plaintiff, and destroyed the

NOTE-PLEADINGS IN ACTION REMOVED FROM JUSTICE'S COURT BY PLEA OF TITLE.

"In the new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he relied before the justice; and the defendant's answer must set up the same defense only which he made before the justice."

Code of Civil Procedure, § 2957.

The complaint in the new action may be different in form but if it is addressed to the same cause of action, as was the complaint in the justice's court, it complies with the requirement of the statute.

People v. Albany Common Pleas, 19 Wend. 123.

Even when the old code (Code of Procedure § 60) provided that "the answer of the defendant shall be the same which he made before the justice," the court of appeals indicated that only the same substantial defense was meant.

Wiggins v. Tallmadge, 7 How. Pr. 404.

In the case last cited that court said: "The code (§ 60) provides that 'the answer of the defendant shall be the same which he made before the justice.' This a right secured to the plaintiff and introduced for his benefit; that the defendant having by one answer ousted the jurisdiction of the justice shall not resort to a different defense in the supreme court. The section likewise provides that 'the plaintiff shall complain for the same cause of

crops thereon. The defendant answered, denying title of plaintiff's lessor, and on removal to the supreme court plaintiff, in his complaint, alleged in addition that defendant and his cattle "otherwise injured said premises." Held that the complaint in the new action contained the same cause of action as the original one.

2. SAME

LACK OF IDENTITY OF CAUSE OF ACTION-REMEDY.

Under Code Civ. Pro. § 2957, providing that on removal of an action involving title to real property from a justice's court to the supreme court the plaintiff must complain for the same cause of action as that set up in the complaint, if the complaint in the supreme court fails to conform to the complaint in the justice's court the defendant's remedy is by a motion to strike it out.

3. SAME CHANGE OF PLEA.

Where an action of trespass is removed from a justice's court to the su

PLEADINGS IN ACTION REMOVED from JUSTICE'S COURT BY PLEA OF TITLE, Continued.

action only on which he relied before the justice.' This obviously does not tie the plaintiff up to the exact form of words that he used before the justice, but only confines him to the same substantial cause of action. So likewise, the provision that the defendant's answer is to be the same, does not require the same identical words, but only the same substantial defense." The fact that the declaration before the justice was general and contained no description of the close, while that in the new action particularly describes the close does not render the latter obnoxious to the objection that a different cause of action is relied on.

People v. Albany Common Pleas, 19 Wend. 123.

If the defendant when sued for trespass before the justice relies upon his title, he cannot plead the general issue upon the removal of the cause. Strong v. Smith, 2 Caines, 28.

Matter of Drew, 6 Cow. 610.

The insertion in the complaint in the new action of an allegation that the defendant is a corporation, which was not in the complaint filed with the justice, does not violate the statute as to the requirement of identity of cause of action.

Fox v. Erie Preserving Co. 93 N. Y. 54.

"This section [2957] prohibits the plaintiff from alleging in the supreme court a new cause of action; or one different from that alleged before the justice; but it does not prohibit him from making the cause of action upon which he there relied perfect by such new allegations as are needed for that purpose. The allegation that the defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant."

Id.

preme court, after an issue of title to real property has been raised by defendant by a plea admitting the trespass, but denying plaintiff's title, the defendant cannot, in the supreme court, withdraw his plea, and interpose a general denial.

4. STRIKING OUT ANSWER-MOTION-LACHES.

A delay of six weeks in moving to strike out an answer, occurring in midsummer, when little business is done in the courts, will not be regarded as such laches as will deprive the party moving to the relief, if otherwise entitled thereto.

Williams and Laughlin, JJ., dissenting.

PLEADINGS IN ACTION REMOVED FROM JUSTICE'S COURT BY PLEA OF TITLE -continued.

The remedy for a variance of either complaint or answer in the new action from that filed in the justice's court is a motion to strike it out and if not stricken out the cause must be tried upon the pleadings as they exist. Luthill v. Clark, 11 Wend. 642.

Luthill v. Clark, 12 Wend. 207.

Where the defendant has interposed a new defense in the new action, it is not too late to move at the trial to confine him to the defense interposed in the justice's court.

Brotherton v. Wright, 15 Wend. 237.

Marsh v. Berry, 7 Cow. 344.

When the plaintiff sets up a new cause of action and the defendant pleads the general issue the action is not to be regarded as a continuation of the one in the justice's court but an original action, so far as determining the question of costs.

People v. Rensselaer Common Pleas, 2 Wend. 647.

In Cusson v. Whalon, 5 How. Pr. 302, Hand J., intimated that the usual amendment of course within twenty days after service of a pleading was not available in an action removed from a justice's court by a plea of title. This was said with immediate referece to diligence in serving notice of trial after joinder of issue. The requirement of identity of cause of action would undoubtedly permit an amendment of course which affected only the form of the pleading. An amendment affecting pleadings in matters of substance in such an action could not be had even upon motion. Wendell v. Mitchell, 5 How. Pr. 424.

No reply being necessary in the justice's court, if one is served in the new action it will be stricken out.

McNamara v. Bitely, 4 How. Pr. 44.

The plaintiff may demur to defendant's answer in the new action notwithstanding no such issue was taken in the justice's court.

Dorman v. Lang, 3 How. Pr. 59.